                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0428n.06
                             Filed: June 20, 2007

                                           No. 06-3843

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
ANDRE A. PONDER                                   )   NORTHERN DISTRICT OF OHIO,
                                                  )   EASTERN DIVISION
       Defendant-Appellant.                       )
                                                  )
                                                  )
                                                  )
                                                  )
                                                  )


       Before: Moore and Griffin, Circuit Judges; McKinley, District Judge.*

       McKinley, District Judge.      Defendant-Appellant Andre Ponder was indicted by a federal

grand jury for being a felon in possession of a firearm. Following his indictment, the Defendant-

Appellant filed a motion to suppress the evidence obtained as a result of the warrantless search of

his brother’s home. The district court denied Ponder’s motion to suppress and Ponder entered a

conditional guilty plea. On appeal, Ponder argues that the district court erred in denying his motion

to suppress because the warrantless search of his brother’s home was not justified by exigent

circumstances. The Government argues that the district court erred in finding that Ponder had

       *
         The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western
District of Kentucky, sitting by designation.
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Page 2

standing to challenge the warrantless search of his brother’s home since he was an overnight guest

there. For the reasons set forth below, we AFFIRM the judgment of the district court.

                                       I. BACKGROUND

         On September 24, 2004, a caller alerted police that shots had been fired. When police

officers arrived on the scene, they observed a bloodied, vandalized vehicle with smashed windows.

The owner of the car, Willie Hines, told the officers that two brothers had vandalized his vehicle

and threatened him with a gun. Hines told the officers that he could identify the two brothers and

offered to take them to the place where Hines believed they would be. The officers placed Hines in

the back of their patrol vehicle and followed his directions. The police eventually arrived at what

they would learn was one of the brothers’ homes and saw two black males on the porch whom Hines

identified as his assailants. When one of the suspects on the porch saw the police car, he ran inside.

The police approached the other suspect, who remained on the porch, and who was eventually

identified as Andre Ponder, the Defendant-Appellant (“Andre”), and observed that his hand was

wrapped in cloth and bleeding. The officers proceeded to place Andre under arrest for felonious

assault and vandalism to a vehicle. Simultaneously, the officers requested permission to search the

home into which the other brother, Kenya, had fled. Kenya’s girlfriend, a resident of the home,

refused to allow the police to enter without a warrant. She asked, however, that she be allowed to

remove her children, who were asleep in the home, if police were going to enter the house anyway.

The police then proceeded to enter and search the premises for Kenya. During their search, they

found two guns in the clothes dryer. Eventually, the police found Kenya hiding in a neighbor’s

house.
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      On November 9, 2004, a federal grand jury indicted Andre for being a felon in possession of

a firearm. Following his indictment, the Defendant-Appellant filed a motion to suppress the

evidence obtained as a result of the warrantless search of his brother’s home, where he claimed to

be an overnight guest. The district court held that the Defendant-Appellant had standing to challenge

the warrantless search of his brother’s residence because he was an overnight guest there. The

district court, however, denied the motion to suppress, holding that the warrantless search was

justified by the existence of “exigent circumstances.”

                                          II. ANALYSIS

A. The Defendant-Appellant has Standing

       Initially, the Government argues that the Defendant-Appellant does not have standing to

object to the search of Kenya’s residence since Andre was only a visitor there and, therefore, had

no reasonable expectation of privacy. The Defendant-Appellant argues that this issue cannot be

considered on appeal because the Government did not appeal the district court’s order holding that

the Defendant-Appellant had standing. The Defendant-Appellant’s argument fails in this regard

because a prevailing party need not cross-appeal to be entitled to support the judgment in its favor

on grounds expressly rejected by the district court. See, e.g., Jacobs v. E.I. du Pont de Nemours &

Co., 67 F.3d 1219, 1246 n.43 (6th Cir. 1995) (“...an appellee can propose alternative grounds in

support of trial court judgment so long as those arguments were presented below”); Ball v. Abbott

Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1988) (“A defendant may raise an alternative theory

without cross-appealing.”) Accordingly, we can consider whether the Defendant-Appellant has

standing to challenge the warrantless search since the Government raised the issue before the district
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court.

           To have standing, a person must have a subjective expectation of privacy in the premises

searched. Minnesota v. Olson, 495 U.S. 91, 95-97 (1990). The Defendant has the burden of proof

to establish the standing necessary to assert a Fourth Amendment violation. United States v. Smith,

263 F.3d 571, 582 (6th Cir. 2001). Importantly, the Supreme Court has held that an overnight guest,

unlike a guest present at a home without the homeowner’s consent, has a reasonable expectation of

privacy that will support standing. Olson, 495 U.S. at 97; Minnesota v. Carter, 525 U.S. 83, 90

(1998).

           In the proceedings below, the district court held that the Defendant-Appellant had met his

burden of establishing standing by presenting the “consistent and unequivocal” testimony of three

witnesses - his mother, his brother, and his brother’s girlfriend. The district court found that the

testimony of these witnesses outweighed           the   circumstantial evidence introduced by the

Government, that Andre brought no personal overnight items to his brother’s residence and that he

never told the police that he was an overnight guest there. On appeal, the Government argues that

Defendant-Appellant’s witnesses were not credible because their testimony was contradictory and

because they sought to protect the Defendant-Appellant.

         However, in reviewing a motion to suppress, the district court’s factual findings are accepted

unless clearly erroneous. United States v. Huffman, 461 F.3d 777, 782 (6th Cir. 2006); United States

v. Ogbuh, 982 F.2d 1000, 1003 (6th Cir. 1993). To put it another way, a district court’s factual

findings are overturned only if the appellate court has “a definite and firm conviction that a mistake

has been committed.” Huffman, 982 F.2d at 782 (quoting United States v. Worley, 193 F.3d 380, 384
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(6th Cir. 1999)). Accordingly, a “district court’s findings based on the credibility of witnesses before

it are entitled to great deference on appeal.” Isabel v. City of Memphis, 404 F.3d 404, 411 (6th Cir.

2005).

          Here, based on the evidence, we find reasonable the district court’s conclusion that the

Defendant-Appellant was an overnight guest at his brother’s residence. Thus, the Defendant-

Appellant has standing to challenge the warrantless search that occurred on the night in question.

B. The Warrantless Search was Justified

         On appeal, the Defendant-Appellant argues that the warrantless search of the home was not

justified because not one of the exigent emergency exceptions is applicable to the situation that

existed when the police entered Kenya’s home without a warrant. We disagree.

      It is a “‘basic principle of Fourth Amendment’ law that searches and seizures inside a home

without a warrant are presumptively unreasonable.” O’Brien v. City of Grand Rapids, 23 F.3d 990,

996 (6th Cir. 1994) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)). Thus, the Fourth

Amendment prohibits the warrantless entry and search of a home absent exigent circumstances.

Payton, 445 U.S. at 589-590. Exigent circumstances are situations where “real, immediate, and

serious consequences” will “certainly occur” if a police officer postpones action to obtain a warrant.

United States v. Williams, 354 F.3d 497, 503 (6th Cir. 2003) (quoting Ewolski v. City of Brunswick,

287 F.3d 492, 501 (6th Cir. 2002)(quoting Welsh v. Wisconsin, 466 U.S. 740, 751 (1984)); see also

Thacker v. City of Columbus, 328 F.3d 244, 253 (6th Cir. 2003). The relevant inquiry is whether the

facts are such that an objectively reasonable officer confronted with the same circumstances could

reasonably believe that exigent circumstances existed. Ewolski, 287 F.3d at 501 (citing Dickerson
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v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996)). Finally, it is the Government who bears the

burden of proving the existence of a legitimate exigency. United States v. Lewis, 231 F.3d 238, 241

(6th Cir. 2000).

        We have identified the following situations that may give rise to exigent circumstances: 1)

the hot pursuit of a fleeing felon; 2) the imminent destruction of evidence; 3) the need to prevent a

suspect’s escape; and 4) the risk of danger to police or others. Williams, 354 F.3d at 503; United

States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994). Whether exigent circumstances exist is

determined at “the moment of the warrantless entry by the officers.” United States v. Killebrew, 560

F.2d 729, 733 (6th Cir. 1977). Here, the district court held that the warrantless entry of Kenya’s

home was justified based on the fourth exception - because the situation created “an immediate threat

to the safety of the officers.”

      In order to show that the warrantless entry and search of a residence was justified based upon

a “risk of danger,” the Government must show that “there was a risk of serious injury posed to the

officers or others that required swift action.” Huffman, 461 F.3d at 783 (citing United States v.

Whren, 517 U.S. 806, 813 (1996)). More specifically, a “risk of danger” exists where 1) the officers

have a reasonable belief that a suspect in the home has a weapon; and 2) the officers can demonstrate

that the suspect had a willingness to use the weapon. Causey v. City of Bay City, 442 F.3d 524, 529

(6th Cir. 2006). Accordingly, in Causey, our court held that it was reasonable for officers to enter

a residence on New Year’s Eve without a warrant because, after learning that a gun had been fired

on the property six times, it was necessary for the officers to “ascertain whether someone inside the

house was in peril,” despite the fact that 1) a neighbor had informed the officers that shots had also
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been fired from the home on previous holidays; 2) the officers had spoken to the occupants through

a window and the occupants had told the officers that no one was injured; and 3) the officers made

no observations that contradicted the occupants’ assurances. Id. Our court upheld the search because

the facts indicated that there was someone within the residence who had both a weapon and a

willingness to use it and, thus, the officers had a justified, reasonable belief that either they or others

were in imminent peril of bodily harm.

        Similarly, we have upheld warrantless searches due to a “risk of danger” in Dickerson v.

McClellan, 101 F.3d 1151 (6th Cir. 1996), and Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1992).

In Dickerson, our court held that a warrantless entry into a home was justified where a neighbor

called 911 to report that nine gunshots had been fired; the occupant of the house was drunk; and the

officer heard the occupant yelling in a threatening tone. 101 F.3d 1151. In Hancock, our court held

that exigent circumstances existed where, in addition to a shots-fired report, the police also knew

from the suspect’s psychologist that the suspect was “suicidal and possibly homicidal” and that he

had threatened to kill any responding officer. Hancock, 958 F.2d at 1375-76. These cases are unlike

United States v. Bates, in which our court held that no exigent circumstance existed, even though

the officers believed that the suspect had a handgun in his residence, since the officers possessed no

specific information suggesting that the suspect was likely to use the weapon or become violent. 84

F.3d.790, 795-796 (6th Cir. 1996).

         The police in this case, based on the facts known to them at the time of their warrantless

entry into Kenya’s residence, could reasonably have concluded that the circumstances posed an

immediate risk of harm, either to themselves or others. It was reasonable for the officers to fear that
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Kenya had both a weapon and a willingness to use it since Willie Hines had indicated that Andre and

Kenya were the individuals who had illegally fired shots near his home less than an hour earlier.

Accordingly, the officers were justified in making a warrantless entry into the house to search for

Kenya.

      The Defendant-Appellant further argues, however, that even if the police had a reasonable

belief that a “risk of harm” existed, this exigent situation was created by the officers themselves, and

therefore, the warrantless search was not justified.

     It is well-established that police officers are not free to create exigent circumstances to justify

their warrantless searches. United States v. Campbell, 261 F.3d 628, 633 (6th Cir. 2001)(citing

United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984)). Indeed, in order “for a warrantless

search to stand, law enforcement officers must be responding to an unanticipated exigency rather

than simply creating the exigency for themselves.” United States v. Chambers, 395 F.3d 563, 566

(6th Cir. 2005). Importantly, however, establishing that police have created an exigent situation

usually requires a showing of “deliberate conduct on the part of the police evincing an effort

intentionally to evade the warrant requirement.” Ewolski v. City of Brunswick, 287 F.3d 492, 504 (6th

Cir. 2002). There is no evidence here to suggest that the police made a deliberate effort to evade the

warrant requirement. Rather, it appears that they were properly conducting an ongoing investigation

that had begun just a few hours earlier. Accordingly, we hold that the officers did not intentionally

create an exigent situation, but rather the exigent situation naturally arose when they observed Kenya

flee into the house.

                                        III. CONCLUSION
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      For all of the reasons set forth above, we AFFIRM the judgment of the district court.
