                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                             AUG 21 2003
                             FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

    STEPHEN D. THORNTON,

                  Petitioner-Appellant,
                                                           No. 02-7130
    v.                                               (D.C. No. 01-CV-288-S)
                                                        (E.D. Oklahoma)
    STATE OF OKLAHOMA,

                  Respondent-Appellee.


                              ORDER AND JUDGMENT           *




Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Petitioner seeks review of the denial of his petition for writ of habeas

corpus, brought pursuant to 28 U.S.C. § 2254. As required by 28 U.S.C.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 2253(c)(1)(A), he requested a certificate of appealability (COA), which we

granted as to the issue of whether the officer’s unwarranted search was based on

exigent circumstances.   1



         Petitioner was convicted in state court in Oklahoma of manufacturing

methamphetamine. Oklahoma police were contacted by an informant, whose

reliability was then unknown to them. The informant advised that petitioner had

asked for Vicks inhalers in order to make methamphetamine. The officers placed

a body wire on the informant and sent him with the inhalers to meet petitioner,

after which they monitored the wire while petitioner showed the informant how to

make the drug. As the officers were monitoring (and taping) the wire, they

learned that petitioner had created a finished product. The officers then entered

petitioner’s home, where they noticed a strong chemical smell. In the kitchen

they observed broken inhalers, methamphetamine in a Pyrex pie pan, a spoon,

syringe, and muriatic acid. This evidence was seized and used at petitioner’s

trial.

         On direct appeal, with new counsel, petitioner alleged that his

constitutional rights were violated by the warrantless search of his home and

seizure of the above-mentioned evidence. He also contended that trial counsel was


1
       Although he has also argued that his trial counsel was constitutionally
ineffective for failing to challenge the search, petitioner did not seek a COA on
that claim. Consequently, we deem it waived.

                                           -2-
ineffective for failing to move to suppress the evidence. The Oklahoma Court of

Criminal Appeals (OCCA) determined that the warrantless search was based on

exigent circumstances and that the tape recording of the events inside petitioner’s

home provided the independent corroboration needed to establish the informant’s

trustworthiness. The OCCA further held that any motion to suppress would have

been denied and therefore trial counsel was not ineffective for failing to file such

motion.

      The district court found the OCCA’s decision on both issues to be

consistent with federal law and denied the habeas petition. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.   2



      Under the provisions of the Antiterrorism and Effective Death Penalty Act

(AEDPA), when the state courts have adjudicated a petitioner’s claims on the

merits, a federal court may

      grant a writ of habeas corpus only if the state adjudication of the
      claim (1) ‘resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court . . . ,’ § 2254(d)(1); or (2) ‘resulted
      in a decision that was based on an unreasonable determination of the
      facts in light of evidence presented in the state court proceeding,’
      § 2254(d)(2).




2
       We need not consider the state’s argument, raised for the first time on
appeal, that Stone v. Powell , 428 U.S. 465 (1976), bars our consideration of
petitioner’s Fourth Amendment claim.

                                             -3-
Cook v. McKune, 323 F.3d 825, 829 (10th Cir. 2003). In addition, we will

presume correct any state court factual finding, absent clear and convincing

evidence to the contrary. 28 U.S.C. § 2254(e)(1). It is petitioner’s obligation to

rebut that presumption.   Darks v. Mullin , 327 F.3d 1001, 1007 (10th Cir. 2003).

      Under Supreme Court precedent, “police officers need either a warrant or

probable cause plus exigent circumstances in order to make a lawful entry into a

home.” Kirk v. Louisiana , 536 U.S. 635, 638 (2002). Petitioner claims there

were no exigent circumstances because in the time it took to buy the inhalers,

wire the informant, and monitor the conversation inside petitioner’s home, police

could have obtained a warrant. He further contends that the OCCA failed to

quote any federal law in its summary opinion upholding his conviction. Pet’r

Reply Br. at 6.

      Here the police did not have probable cause for a warrant when they were

approached by the unknown informant. Indeed, probable cause did not exist until

they had monitored the wire long enough to become aware that petitioner had

created a finished product. Prior to that time, the officers lacked sufficient

information and adequate opportunity to seek a warrant. According to

respondent, and not denied by petitioner, the officers then immediately gained

entry to the residence. The OCCA held:     “The potential for easy destruction of the

evidence in this case provided the exigent circumstances needed to support the



                                           -4-
warrantless search.” Unpacking this statement, it consists of a factual finding that there

was a potential for easy destruction of the evidence, and a legal conclusion that this

constituted exigent circumstances. As to the factual finding, we have no basis for

questioning the state court’s conclusion – let alone the clear and convincing evidence

required to overcome the presumption in favor of finality of the state court judgment.

       As to the legal conclusion, we cannot grant relief unless the OCCA’s conclusion

was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court. The Supreme Court has not

provided detailed guidance regarding the scope of exigent circumstances, but

cases recognize that the threat of imminent destruction of evidence, coupled with

probable cause, can justify a warrantless entry and search.      See generally

Schmerber v. California , 384 U.S. 757, 770-71 (1966) (recognizing that “delay

necessary to obtain a warrant, under the circumstances, threatened ‘the

destruction of evidence.’”) (quoting    Preston v. United States , 376 U.S. 364, 367

(1964). There is no Supreme Court decision contrary to the OCCA’s holding in

this case.

       Petitioner’s claim that the OCCA failed to quote federal law is also

unavailing. The cases cited by the OCCA clearly evince that court’s recognition

of the proper constitutional standards applicable to alleged Fourth Amendment

violations. We therefore conclude that petitioner has failed to establish that the



                                            -5-
state court’s decision was contrary to or involved an unreasonable application of

federal law as determined by the Supreme Court.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                   Entered for the Court



                                                   Michael W. McConnell
                                                   Circuit Judge




                                        -6-
02-7130, Thornton v. Oklahoma
EBEL, Circuit Judge, dissenting


      I respectfully dissent. In my judgment, the Oklahoma Court of Criminal

Appeals acted contrary to established Supreme Court law and unreasonably

applied the facts of this case to established Supreme Court law in finding exigent

circumstances in this case. I believe that the police could have obtained a search

warrant based on the information they had before the informant ever entered the

house. In any event, the main evidence of exigent circumstances – that the

methamphetamine was about to become consumed – was not learned until after

the police had entered the house and observed the syringe, etc. Exigent

circumstances discovered as a result of an illegal search cannot be used to

validate the illegal search. The other alleged exigent circumstances – that

methamphetamine is explosive and cancer forming – is generic and would justify

warrantless searches every time methamphetamine is suspected. On the facts of

this case, I believe that the Oklahoma Court of Criminal Appeals acted contrary to

established Supreme Court law and unreasonably applied the facts to established

Supreme Court law.

      For these reasons, I dissent.




                                        -7-
