                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                  UNITED STATES COURT OF APPEALS
                                                                July 1, 2003
                       For the Fifth Circuit
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 02-30976


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellant,


                               VERSUS


                        MICHAEL A. MERCADEL,

                                                 Defendant-Appellee.




           Appeal from the United States District Court
               For the Eastern District of Louisiana
                          (02-CR-170-1-J)


Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

      The government appeals the district court’s grant of defendant

Michael A. Mercadel’s motion to suppress evidence related to the

prosecution of Mercadel for felony possession of a firearm, 18

U.S.C. § 922(g)(1), possession with intent to distribute marijuana,

21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance

  *
   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opinion should not be published and is not precedent except under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.

                                -1-
of a drug trafficking offense, 18 U.S.C. § 924(c)(1).             The district

court suppressed the evidence on grounds that it was obtained in

violation of Mercadel’s Fourth Amendment rights. Finding that this

determination was not in error, we now affirm the district court.

                            I.    Background

A.   Factual Background

     The   facts   underlying    this   case,   as    testified    to    at   the

suppression hearing, are hotly disputed. On May 20, 2002, at 11:30

a.m. Sergeant Todd Morrell of the New Orleans Police Department

(“NOPD”) made a routine traffic stop of a company delivery truck

driven by Frank Smith.     Upon stopping the truck, Morrell spotted

marijuana in plain view and arrested Smith for possession with

intent to distribute the drug.      Because the company that owned the

truck informed Morrell that it would not pick the truck up until

later, Morrell feared that the truck would be stolen. Accordingly,

he asked Smith whether anybody else could secure the vehicle.

Smith indicated that his cousin, who lived three doors down from

the stop, could do so.     Morrell testified that he then walked to

the cousin’s house to attempt to secure the vehicle as a “favor” to

Smith.

     From this point the suppression hearing testimony of Morrell

and Mercadel   wildly   differed.         Morrell    testified    that   as   he

approached the cousin’s house at 2615 Allen Street, he found the

front door open but the screen door closed.                A large curtain



                                    -2-
hanging from the screen door obstructed his view into the house,

but a gap existed between the top of the door and the curtain.   As

Morrell got closer to the house, he “smelled marijuana smell, like

burning marijuana.”1   Morrell, who is 6'3", then balanced on his

toes on the two-inch wide ledge of the door frame, cupped his eyes

with his hands to block out the glare of the noonday sun, and saw

through the gap a bag of marijuana identical to the bag found in

Smith’s truck lying on a table in the house.2

      Morrell testified that he then retreated from the door,

summoned Officer Robert Gisevius to back him up, and then knocked

on the door.3   Mercadel answered, at which point Morrell asked him

to exit the house, whereupon Mercadel was secured by Gisevius.

Morrell then opened the screen door, told Goodman to exit, and had

  1
   Morrell testified that he did not find any evidence of recently
smoked marijuana once he entered the house, although he claimed
that he still “smelled it.” Morrell also acknowledged that a drug
test of Mercadel, conducted immediately after arrest, revealed that
he had not been smoking marijuana. Mercadel testified that Kevin
Goodman, the other person in the house when Morrell approached, had
not been smoking marijuana either.
  2
   While the suppression hearing transcript is far from clear on
this point, it at least appears that Morrell claims he saw Mercadel
sitting on the couch near the table with the marijuana.           A
subsequent affidavit of Morrell, made in the hope of reopening the
suppression hearing, indicates that Morrell saw another man,
apparently Goodman, in the living room as well. The police report,
also made available after the suppression hearing, states that
Morrell saw two men in the living room along with the drugs.
  3
   It is unclear from Morrell’s testimony at the suppression
hearing how much time elapsed between his retreat from the door,
and return to knock on the door. Morrell’s supplemental affidavit
indicates this occurred in a matter of “seconds,” suggesting
Gisevius was nearby.

                                -3-
Gisevius secure Goodman.      Thereupon Morrell entered the house.

     Once inside, Morrell immediately determined that the bag on

the table contained marijuana.           He then conducted a protective

sweep of the premises incidental to arrest to determine whether

there were any other occupants hidden in the house.             While Morrell

found no other people, he did find two weapons and more marijuana

all in plain view.

     In contrast, Mercadel testified that he was home on the day in

question in the kitchen cooking red beans and rice for his cousin,

Goodman.      Mercadel   states   that     Morrell   arrived    at   his   door,

knocked, and then asked him for identification. When Mercadel went

to his bedroom to get his ID, Morrell entered his house without

permission. Mercadel claims that he told Morrell to exit unless he

had a warrant, but that Morrell refused, making Mercadel and

Goodman leave the house instead.           On cross-examination, Mercadel

claimed that the guns and drugs found at his house were planted by

the police.

B.   Procedural Background

     Mercadel was indicted for narcotics possession and firearms

violations.     He filed a motion to suppress the evidence collected

at his house on grounds that it was obtained in violation of his

Fourth Amendment rights.          On July 17, 2002 the district court

conducted   a   suppression   hearing,       where   Mercadel    and   Morrell

testified as noted above.     The defense also called an investigator

in the public defender’s office, Bill Healy, who testified that he

                                     -4-
had visited Mercadel’s house subsequent to the incident at issue.

He stated that he visited the house at noon, and that the glare of

the sun prevented him from seeing into the house through the screen

door, even with his hands cupping his eyes.    On cross-examination,

Healy admitted that the electricity was not on in the house when he

visited, in contrast to the day Morrell stopped at the house.

      On August 27, 2002 the district court granted Mercadel’s

motion to suppress.    The court stated that it “did not find either

Sergeant Morrell’s testimony or the defendant’s to be credible.”

It questioned whether in fact Morrell went to Mercadel’s house in

an effort to get Smith’s cousin to secure a company truck.       The

court found it “patently incredible” that Morrell would do an

apprehended felon a “favor,” especially where doing so was contrary

to NOPD policy.4    Rather, it found it “infinitely more likely” that

Morrell was acting on a tip from Smith that drugs would be found in

Mercadel’s house.

      The district court also did not believe Morrell’s story of how

he developed probable cause of drug activity while approaching

Mercadel’s home.      It found Morrell’s statement that he smelled

burning marijuana unbelievable in part because Mercadel tested

negative for marijuana following the arrest.      It also discounted

Morrell’s claim that he saw the marijuana through the screen door,


  4
   The district court explained that “[s]eeking to secure a vehicle
with a relative of a driver who is not the owner of the vehicle is
evidently not the policy of the NOPD.”

                                  -5-
based on the logistical difficulties inherent in Morrell’s version

of events.       The district court concluded that because Morrell

lacked probable cause to enter Mercadel’s house, any contraband he

saw once inside was obtained in violation of the Fourth Amendment

because he was not “lawfully in a position from which to view” the

items.

     In the alternative, the district court held that even if

Morrell had developed probable cause to believe there was marijuana

in the house, he had no “right of access” to the drugs because

there    were   no   exigent    circumstances        requiring   him   to   enter

Mercadel’s house without a warrant.            The district court found that

the occupants of the house were not aware of the police presence,

and therefore, the police had time to obtain a warrant.

     In response to the district court’s adverse ruling, the

government      filed   a   limited   motion    to    reopen   the   suppression

hearing.     With that motion the government attached affidavits by

Morrell and Gisevius, which were largely directed at establishing

exigent circumstances justifying Morrell’s warrantless intrusion

into Mercadel’s home.          The government also sought to introduce

commendations awarded to Morrell to boost his credibility, as well

as the police report filed immediately following the incident. The

district court denied the government’s motion.

     The government timely appealed the rulings on both the motion

to suppress and the motion to reopen the evidentiary hearing.



                                       -6-
                             II.   Analysis

A.    Probable Cause

      We review the district court’s ruling on a motion to suppress

in the light most favorable to the party that prevailed below

(here, Mercadel).   United States v. Foy, 28 F.3d 464, 474 (5th Cir.

1994).   The district court’s legal determinations are reviewed de

novo, while its factual findings are examined for clear error.

United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001).            A

factual finding is clearly erroneous if we are "left with the

definite and firm conviction that the district court committed a

mistake." Bartmess v. Federal Crop Ins. Corp., 845 F.2d 1258, 1261

(5th Cir. 1988).       In Bartmess, we reiterated the factors that

indicate that a factual finding is clearly erroneous:

      [C]lear error exists if (1) the findings are without
      substantial evidence to support them; (2) the trial court
      misapprehended the effect of the evidence; or (3)
      although there is evidence that, if credible, would be
      substantial, the force and effect of the testimony,
      considered as a whole, convinces the appellate court that
      the findings are so against the great preponderance of
      the credible testimony that they do not reflect or
      represent the truth or right of the case.

Id.   If we determine that, viewing the record as a whole, the

district court's conclusion is plausible, then we must uphold the

district court's factual findings.       Id.

      Here, the evidence in question was found during a warrantless

entry by Morrell into Mercadel’s home.         “A warrantless intrusion

into an individual’s home is presumptively unreasonable unless the



                                   -7-
person consents or probable cause and exigent circumstances justify

the encroachment.”      Jones, 239 F.3d at 719.        The government does

not contend that Mercadel consented to Morrell’s presence in his

home; rather, it argues that Morrell had probable cause to believe

that drug trafficking was occurring within the house, and that

exigent circumstances required a warrantless entry.

     The government argues probable cause arose from two facts:

Morrell saw drugs through the screen door and smelled “burning

marijuana”    as   he   approached   the   house.      The   district   court

disbelieved    Morrell’s     testimony     on   both   accounts.        While

acknowledging that on review it is not our “function to pass on a

district court’s determination regarding the credibility of the

witness,” United States v. Alaniz-Alaniz, 38 F.3d 788, 790 (5th

Cir. 1994), the government nonetheless contends that the district

court clearly erred in finding that Morrell neither saw nor smelled

marijuana prior to entering Mercadel’s home.

     As to the former, the district court based its conclusion that

Morrell had not seen marijuana prior to entering the house on the

logistical difficulties it perceived in Morrell’s version of how he

did so.      Specifically, the district court questioned whether

Morrell, a 6'3" large man, could in fact have balanced on a two-

inch ledge on his toes, as he claimed he had done to see through

the portion of the screen door not covered by the curtain.                The

court also doubted whether Morrell could have seen anything through

the screen because of the glare of the noonday sun, relying in part

                                     -8-
on the difficulties Healy encountered in attempting to do the same

thing a few weeks later.      Our first question on review, then, is

whether these conclusions are “plausible” given the record as a

whole.

     The government argues that the district court’s conclusions

are not supportable by substantial evidence in the record.              The

government first takes issue with the district court’s concerns

about Morrell’s seeing over the curtain, arguing that the curtain

was sufficiently low on the door that Morrell could have easily

looked over the door while on his toes.           It argues that this

conclusion is bolstered by Healy, who testified that at six feet he

could see over the curtain while on his toes.       The government also

suggests that the curtain was translucent, meaning that Morrell may

have been able to see marijuana through the curtain.          As for the

glare from the sun, the government argues that the district court

clearly   erred   in   crediting   Healy’s   testimony   because   of   the

different conditions present when Healy and Morrell visited the

house.    Specifically, the government contends that the absence of

light and colorful furniture in the house when Healy visited makes

his testimony inapposite as to the conditions when Morrell visited.

     Unfortunately for the government, many of its arguments on

appeal bear little resemblance to the facts testified to by Morrell

at the suppression hearing.        While it may well have been possible

to see through the curtain, as the government now alleges, Morrell

testified that he “didn’t look through the curtain.”        Thus, it was

                                     -9-
far from erroneous for the district court to discount a method of

viewing the drugs the officer explicitly disclaimed.    As for the

height of the curtain, Morrell testified at the suppression hearing

that he saw over the curtain by standing on his toes on the two-

inch wide door frame.   Accordingly, it was his version of events

that the district court had the duty to credit or not credit,

leaving the government’s argument on appeal that the curtain was

“low hanging” divorced from the evidence.

     Given Morrell’s large stature, it was not clearly erroneous

for the district court to refuse to credit testimony that Morrell

peered at the drugs while standing on his toes on a narrow ledge.

Such a judgment call is properly in the hands of the district

court, which had the opportunity to physically view Morrell, rather

than in ours, which are tied by the limits of a cold record.

Likewise, while there were differences in the condition of the

house when Healy and Morrell visited, determining which conflicting

story to credit on the impact of the sun’s glare on the screen door

was a determination for the district court.   It made the decision

to credit Healy, and not Morrell, and we are loath to disturb that

judgment here.

     Perhaps recognizing the futility of challenging the district

court’s findings on whether Morrell saw marijuana from the ledge,

the government in a footnote adds the argument that the district

court clearly erred in not finding that Morrell smelled burning

marijuana while approaching the house, as he testified.     As the

                               -10-
government correctly notes, if in fact Morrell smelled marijuana on

his approach to the house, that alone would qualify as probable

cause to believe that illegal narcotics activity was going on in

Mercadel’s home.   See United States v. Pierre, 958 F.2d 1304, 1310

(5th Cir. 1992) (en banc) (holding that smelling marijuana in a car

stopped at an immigration checkpoint constituted probable cause of

drug activity).    The court discounted Morrell’s story of smelling

burning marijuana both based on the failure of Morrell to find any

evidence in the house of recently smoked marijuana and because a

drug test of Mercadel, conducted immediately after his arrest,

indicated he had no marijuana in his blood stream.

      Again, the government’s burden on appeal is to show that

district court clearly erred.   But the government fails to explain

why the district court’s factual finding was not “plausible” given

the record as a whole.     The failure of the police to find any

evidence of recently smoked marijuana within the house, combined

with the drug test that Mercadel cleared, forms a sufficient

evidentiary basis for the district court’s conclusion that there

was no burning marijuana for Morrell to smell.5   Thus, this factual

  5
   As noted above, there was another person within the house that
could have been smoking marijuana, Mercadel’s cousin Kevin Goodman.
The record does not indicate whether Goodman passed a drug test
following the seizures in Mercadel’s house. But Mercadel testified
at the suppression hearing that Goodman had not been smoking
marijuana at his house, and although the district court generally
did not credit Mercadel’s testimony, it appears to have believed
this fact (perhaps because it was in accord with the lack of
physical evidence of recently smoked marijuana). Seeing no reason
to disturb this credibility determination on appeal, we find no

                                -11-
finding too was not clearly erroneous.

         Because we find that the district court did not clearly err in

determining that Morrell neither saw nor smelled marijuana in

Mercadel’s house prior to entering, and because the government

offers no other basis from which Morrell developed probable cause

of drug activity in Mercadel’s home prior to entering, the district

court was correct in concluding that Morrell entered the house

without probable cause.6     Because such an entry violates the Fourth

Amendment, the district court correctly suppressed the evidence

found within.      Jones, 239 F.3d at 719.7

B.       Reopening the Suppression Hearing

         The government next argues that even if the district court did

not err in finding that the search in question violated the Fourth

Amendment based on the record in front of it, it did err in

refusing to reopen the suppression hearing to take additional

evidence.      We review the district court’s denial of a motion to

reopen a suppression hearing for an abuse of discretion.        United



clear error here.
     6
   The government asserts for the first time in its reply brief
that Morrell may have seen marijuana in plain view when he “knocked
and talked” at Mercadel’s door. The government does not point to
any portion of the record which would support such a factual
finding, however. And, in any event, we decline to consider an
argument raised for the first time in the reply brief.        In re
Liljeberg Enters. Inc., 304 F.3d 410, 427 n.29 (5th Cir. 2002).
     7
   Because Morrell lacked probable cause to enter Mercadel’s home,
we need not reach the question of whether there were exigent
circumstances present justifying his warrantless intrusion.

                                   -12-
States v. Hassan, 83 F.3d 693, 696 (5th Cir. 1996) (per curiam).

This standard reflects the deference we owe the district court as

the   judicial    actor    best     positioned      to   resolve    the   issue    in

question.    Koon v. United States, 518 U.S. 81, 100 (1996).                Still,

where the district court makes an error of law, it by definition

abuses its discretion.       Id. at 101.

       The district court denied the government’s motion to reopen

the   suppression    hearing      on    alternative      grounds.     First,      the

district court interpreted the government’s motion as one seeking

to    introduce   evidence     of      exigent    circumstances     justifying     a

warrantless entry.         The district court held that allowing such

evidence would amount to a “second bite at the apple,” not to be

allowed “[i]n the absence of any newly discovered evidence.”

Second, the district court explained that it had reviewed the

additional evidence the government sought to introduce, and it

found “that it would not likely change the Court’s findings on the

issue of the witnesses’ credibility, which was based largely on

observation of the witnesses and their demeanor.”                    The district

court finally added that it believed the additional evidence in

fact hurt the government in some ways, as there were discrepancies

between     the   police    report       and     Morrell’s   testimony     at     the

suppression hearing.

       On appeal the government first disputes the district court’s

two-bite rationale, arguing that the lower court applied the wrong

standard for reopening a suppression hearing by mistakenly applying

                                         -13-
the standard for a new trial.             Instead, the government contends the

district court should have applied a more liberal standard to allow

the creation of a more complete record on appeal.                             Here, the

government urges, application of a looser standard would result in

reopening the hearing on the issue of exigent circumstances.

          Assuming arguendo that the district court applied the wrong

legal       standard    in   determining        whether    or    not    to   reopen   the

suppression hearing, its alternative ground for refusing to do so-

that      the   new    evidence   would     not    effect       its    determination-is

sufficient for us to find that the district court did not abuse its

discretion.           While the district court has wide discretion in

determining when to reopen an evidentiary hearing, it abuses its

discretion where the new evidence creates a genuine factual dispute

on an outcome determinative fact.                  United States v. Wilson, 249

F.3d 366, 372, 373 n.13 (5th Cir. 2001).                  The new evidence offered

by the government here does not meet this standard.                          None of the

new       evidence     the    government         sought     to        introduce   either

significantly bolsters Morrell’s credibility or goes to whether he

in       fact   had   probable    cause    to    believe    drug       trafficking    was

occurring in Mercadel’s home.8 As for exigent circumstances, which

     8
   The government also sought to introduce Morrell’s departmental
commendations to boost his credibility. But as the district court
noted in its denial of the motion to reopen the suppression
hearing, its distrust was based on Morrell’s demeanor while
testifying at the suppression hearing. It stated that its opinion
about Morrell would not be altered by this additional evidence, and
therefore failure to reopen the hearing to admit it is not an abuse
of discretion.

                                          -14-
most of the new evidence is directed toward, Mercadel correctly

responds that this issue is moot given the district court’s finding

that Morrell lacked probable cause to enter Mercadel’s home.                   As

such, the failure of the district court to allow the government the

opportunity to introduce new evidence cannot be considered an abuse

of discretion.

       The government argued below that the new evidence would

disprove the district court’s conjecture that Morrell was inspired

to go to Mercadel’s home on the basis of a tip by Smith.                  In its

reply brief on appeal, the government adds that this erroneous

factual determination so infected the remainder of the district

court’s findings that the suppression hearing should be reopened to

allow the district court to correct this mistake.               Specifically,

the government argues that minus the erroneous assumption that

Morrell received a tip from Smith, there is no other credible

explanation for Morrell’s entry into Mercadel’s home other than the

fact that he saw or smelled marijuana when approaching the house.

      Whatever   the   merits   of   this   argument,    most    of     the   “new

evidence” that the government seeks to introduce to disprove the

“tip” theory is not new evidence at all.            Morrell’s new affidavit

merely reiterates his testimony from the suppression hearing that

he   did   not   approach   Mercadel’s      house   on   the    basis    of   any

information related to Mercadel’s drug activities.               The district

court already weighed and disregarded this story as incredible.

The affidavit of Gisevius does confirm Morrell’s account that he

                                     -15-
did not approach Mercadel’s house on the basis of a tip.    But we

agree with Mercadel that the affidavit of Morrell’s subordinate,

who was not necessarily privy to all conversations between Smith

and Morrell, is insufficient to create so great a factual dispute

on the existence of a tip as to make the failure to reopen the

suppression hearing an abuse of discretion.9

                         III.   Conclusion

      Because the district court did not err in granting Mercadel’s

suppression motion on the basis of a violation of his Fourth

Amendment rights, the district court’s order suppressing evidence

is AFFIRMED.




ENDRECORD




  9
   It is worth noting that even if, as the record seems to support,
Morrell received no tip that Mercadel was engaged in drug
trafficking prior to approaching his house, this does not, as the
government contends, prove that he developed probable cause to
search the house prior to entering. Contrary to the government’s
argument, there are an infinite number of possible reasons that
Morrell entered Mercadel’s home. The district court discounts the
only one proffered by Morrell that was consistent with the
Constitution. And as that determination is not clearly erroneous,
further speculation as to Morrell’s motivations is irrelevant.

                                -16-
CLEMENT, Circuit Judge, dissenting:

       Although a rigorous standard of review applies to this case, I must conclude that the district

court clearly erred in finding that Morrell could not have gained knowledge of the existence of the

drugs either by viewing them through the screen door, o r by smelling burning marijuana from the

outside of Mercadel’s house. The district court’s relied-upon “facts”—namely its baseless hypotheses

that the police acted on a tip or had been surveying Mercadel’s residence—dictate an affirmative

answer to the question of whether Morrell had probable cause to enter Mercadel’s house. Under

Bartmess, a factual finding is clearly erroneous if this Court “is left with the definite and firm

conviction that the district court committed a mistake.” 845 F.2d at 1261. I am left with this

conviction given the facts of this appeal. As such, I respectfully dissent.

       The majority bases its opinion on the fact that credibility determinations drove the district

court’s decision. Apparently, the only testimony the district court found credible was Healy’s

testimony that, when he attempted to see inside the house in the same manner and at the same time

of day as Morrell, he could see nothing. Although the time of day was the same, several key

conditions were different when Healy went to Mercadel’s house, a fact noted by the majority. For

instance, there was testimony in the district court that an interior light was illuminated in Mercadel’s

house on the day of the search. When Healy attempted to duplicate the conditions, the electricity was

off. For that reason alone, it is very possible that Morrell would have been able to see more on the

day of his entry than Healy was able to see when he peered through the screen door. Further, Morrell

is three inches taller than Healy. This means that Morrell likely would not have had to strain to see

over the curtain on the screen door. Finally, the photographs of the crime scene taken by each side

are ambiguous, and could have supported Morrell’s testimony equally as well as the district court


                                                -17-
found them to support Healy’s.

        Despite the district court’s findings to the contrary, a factual issue remains as to how Morrell

knew that there was marijuana in the front room of Mercadel’s house and whether exigent

circumstances existed. The district court based its decision, in part, on the unsubstantiated notion

that it was “far more likely that [Morrell] learned of the presence of the marijuana through a tip or

suspected it based on surveillance of the residence.” Under Bartmess’s first factor (i.e., clear error

exists if the district court’s findings are without substantial evidence to support them) this hypothesis

is without substantial supporting evidence. 845 F.2d at 1261. To the contrary, substantial supporting

evidence exists only to invalidate the district court’s conjecture. The new evidence proffered by the

Government in requesting a reopening of the suppression hearing, including affidavits from Morrell

and Gisevius, directly contradicts the court’s flimsy hypothesis that some sort of tip or surveillance

existed that would have given the officers ample time to request a warrant. Given the lack of

evidence for the “tip hypothesis,” the district court’s fact findings do not seem plausible. See id.

Accordingly, the district court clearly erred by finding that Morrell did not see the marijuana in plain

view because it based its conclusion, in part, on the fact that Morrell likely acted on a tip or as a result

of surveillance of the residence.

        Even if the district court’s hypothesis were convincing, several troubling, unexplained facts

remain. First, the district court’s conclusion is in tension with the fact that Morrell called for back-up

after stepping away from Mercadel’s door. Regardless of Morrell’s credibility, there is no explanation

for why he immediately called for back-up, other than his perception that a crime was in progress at

Mercadel’s house. Second: If Morrell never saw or smelled drugs, but instead acted on a tip, why

didn’t his backup accompany him to the house in the first place? Such inconsistencies, along with


                                                  -18-
the knowledge that Morrell is a highly decorated police officer, make it surprising that the district

court discounted his testimony so readily.

        Finally, in addition to the fact that Morrell developed probable cause when he plainly viewed

or smelled the marijuana, it is indisputable that exigent circumstances existed to justify his warrantless

entry. This is clear, not only from the nature of the contraband Morrell viewed from outside the

house, but also because Goodman could have easily seen a 6'3" tall police officer peering inside the

screen door from where he was sitting in the front room. As such, Goodman very well could have

destroyed the contraband, or worse, used the sawed-off shot gun that was tucked into the couch near

him when he saw Morrell.

        For the foregoing reasons, it is evident that the district court clearly erred in finding that there

was no evidence to support the contention that Morrell either plainly viewed or smelled the

marijuana, and that there were no exigent circumstances justifying a warrantless entry. Consequently,

I would reverse the district court’s grant of the motion to suppress.




                                                  -19-
