     15-683
     USA v. Delva


 1                               UNITED STATES COURT OF APPEALS

 2                                      FOR THE SECOND CIRCUIT

 3                                                   ------

 4                                            August Term, 2015

 5   (Argued: May 20, 2016                                                 Decided: June 1, 2017)

 6                                            Docket No. 15-683

 7   _________________________________________________________

 8   UNITED STATES OF AMERICA,

 9                                                         Appellee,

10                                          - v. -

11   DAVID DELVA, a/k/a Sealed Defendant 4,

12                                             Defendant-Appellant.
13   _________________________________________________________

14   Before: KEARSE, WINTER, and JACOBS, Circuit Judges.

15                  Appeal from a judgment of the United States District Court for the Southern District

16   of New York, Katherine B. Forrest, Judge, convicting defendant of conspiracies to commit

17   kidnapping and robbery, see 18 U.S.C. §§ 1201 and 1951; conspiracy to distribute narcotics, see

18   21 U.S.C. § 846; and substantive firearms offenses, see 18 U.S.C. §§ 924(c) and 922(g). Defendant

19   principally challenges the district court's ruling that law enforcement agents' seizure of his cellular

20   telephone and of letters belonging to his uncle from the bedroom shared by defendant and his uncle,

21   following the arrest of the uncle in the apartment in connection with the kidnapping and robbery,

22   pursuant to an arrest warrant but without a search warrant, did not violate the Fourth Amendment
 1   because those items were in plain view and were seized during a protective sweep of the apartment.

 2   Although the record shows that those items were in fact seized after the protective sweep had been

 3   completed and the agents had left and reentered the bedroom, the district court's findings that the

 4   items were in plain view in that room and were recognizable as evidence are not clearly erroneous;

 5   and we conclude that the agents' warrantless reentry into that room did not violate the Fourth

 6   Amendment because it was justified by the exigencies of the circumstances, given that the agents had

 7   found four adult males in the small apartment and had seen narcotics and a gun during the protective

 8   sweep, and that that bedroom was the only unoccupied room, other than the bathroom, in which to

 9   question, individually, the arrestee and the others in order to determine whom to arrest for possession

10   of the narcotics and gun.

11                  Affirmed.

12                  Judge Jacobs dissents in a separate opinion.

13                          JUSTINA GERACI, Assistant United States Attorney, New York,
14                                New York (Preet Bharara, United States Attorney for the
15                                Southern District of New York, Margaret Garnett, Assistant
16                                United States Attorney, New York, New York, on the brief),
17                                for Appellee.

18                          STEVEN Y. YUROWITZ, New York, New York, for Defendant-
19                               Appellant.



20   KEARSE, Circuit Judge:

21                  Defendant David Delva appeals from a judgment entered in the United States District

22   Court for the Southern District of New York following a jury trial before Katherine B. Forrest, Judge,

23   convicting him of conspiracy to commit robbery, in violation of 18 U.S.C. § 1951; conspiracy to

24   commit kidnapping, in violation of id. § 1201; conspiracy to distribute narcotics, in violation of

                                                       2
 1   21 U.S.C. § 846; possession of a firearm in furtherance of the drug trafficking offense, in violation

 2   of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, in violation of id. § 922(g), and

 3   sentencing him principally to 360 months' imprisonment. On appeal, Delva contends principally that

 4   the district court erred in denying his motions for suppression of his cellphone and of letters addressed

 5   to his uncle, Gregory Accilien, seized by law enforcement agents without a search warrant, from the

 6   bedroom he shared with Accilien. The district court ruled that the seizure of those items did not

 7   violate the Fourth Amendment because they were in plain view and were seized during a protective

 8   sweep of the apartment following Accilien's arrest in the apartment pursuant to an arrest warrant in

 9   connection with the kidnapping and robbery. Although we agree with Delva that the record shows

10   that the cellphone and letters were in fact seized after the protective sweep had been completed and

11   the agents had left and reentered the bedroom, we conclude that the agents' warrantless reentry into

12   that room did not violate the Fourth Amendment because it was justified by the exigencies of the

13   circumstances, given that the agents had found four adult males in the small apartment and had seen

14   narcotics and a gun during the protective sweep, and that that bedroom was the only unoccupied room,

15   other than the bathroom, in which to question Accilien and the others individually in order to

16   determine whom to arrest for possession of the narcotics and gun. As the district court's findings that

17   the cellphone and letters were in plain view in that room and were recognizable as evidence are not

18   clearly erroneous, we reject Delva's challenge to the denial of his suppression motions. Rejecting as

19   well his additional evidentiary, procedural, and sentencing challenges, see Part II.B. below, we affirm

20   the judgment.




                                                        3
1                                            I. BACKGROUND



2                   The present prosecution of Delva had its origin in the kidnapping and robbery of a

3    woman and a man in the Bronx, New York, which began on Labor Day weekend in 2012. Those

4    crimes were investigated by a joint task force of Federal Bureau of Investigation ("FBI") agents and

5    New York City Police Department ("NYPD") detectives and officers (collectively or in combination,

 6   the "Officers"). The evidence against Delva at trial (his codefendants had pleaded guilty) included

 7   drugs, a gun, and a cellphone, all belonging to him, and letters sent to Accilien by Accilien's brother

 8   (the "Accilien Letters"). Prior to trial, Delva initially moved to suppress only the drugs and gun, and

 9   a hearing was held; Delva thereafter sought to suppress the cellphone and, eventually, the letters.

10                  The following description of the relevant events is taken from findings by the district

11   court after the suppression-motion hearing, from credited evidence at that hearing which included

12   testimony by the two law enforcement agents leading the investigation, and from evidence at Delva's

13   ensuing trial which included testimony by those agents, Accilien, and the two victims of the

14   kidnapping/robbery, as well as DNA evidence.



15   A. The Kidnapping and Robbery

16                  Late on Sunday evening September 2, 2012, the female victim (or "FV"), who was the

17   girlfriend of a drug dealer--the male victim (or "MV")--was accosted by codefendants Trevor Cole

18   and Dominique Jean Philippe, brandishing guns, outside of her apartment in a building on Magenta

19   Street. She was forced to enter the apartment with Cole and Jean Philippe, who proceeded to search

20   unsuccessfully for drugs and money. FV was blindfolded and assaulted as Cole, Jean Philippe, and


                                                       4
 1   others who joined them attempted to force her to telephone MV to get him to come to her apartment.

 2   FV stalled for about a day by calling a number she knew had been disconnected; but she eventually

3    yielded and reached MV after being raped by three of the intruders, and urinated on by one of them.

4                   Accilien, the brother of Jean Philippe (who was the author of the Accilien Letters),

5    became involved in the early stages of the robbery when he telephoned Jean Philippe in an attempt

6    to borrow money. At Jean Philippe's request, Accilien purchased duct tape and latex gloves and

7    brought them to FV's apartment, where Jean Philippe and Cole informed him that they were in the

 8   middle of a robbery. When Accilien expressed unease and decided to leave, Jean Philippe told

 9   Accilien to bring their nephew Delva to FV's apartment to assist because Delva had had more

10   experience than Accilien in committing robberies. Accilien returned with Delva. All of the robbers

11   donned the latex gloves brought by Accilien and waited for MV to arrive.

12                  Accilien and Delva left FV's apartment on September 3; Delva returned early on

13   September 4. MV arrived thereafter and was held captive by Cole, Jean Philippe, and Delva,

14   attempting to force him to disclose where he kept his cash. MV was bound, blindfolded (albeit

15   ineffectively), stabbed, and repeatedly beaten. Accilien, who had remained at home, attempted to call

16   Jean Philippe, Cole, and Delva to learn whether the robbery was proceeding as planned; when none

17   of them answered their phones, Accilien went to FV's apartment to see whether everything was all

18   right. MV ultimately capitulated and revealed the location of his cash. Cole and Jean Philippe went

19   to that location while Accilien and Delva remained behind to guard FV and MV. During that time,

20   MV managed to shift his blindfold sufficiently to see Accilien, who complained to Delva about the

21   intruders' blindfolding proficiency. Accilien testified that Delva then readjusted MV's blindfold and

22   hit MV several times with a mop handle.


                                                      5
 1                  The home invasion ended on September 4, after the robbers got, inter alia, more than

 2   $40,000 in cash, jewelry, and clothing, along with six pounds of marijuana and FV's car.



 3   B. The Early Investigation

 4                  The investigation of the kidnapping and robbery was led by FBI Special Agent John

 5   Reynolds and NYPD Detective Ellis Deloren. Deloren arrived at the kidnapping/robbery scene and

 6   spoke with FV and MV before they were taken to a hospital, and he later interviewed them at the

 7   hospital. Deloren prepared photographic arrays, each of which included one suspect. FV identified

 8   Cole from one array; MV identified Jean Philippe from another. A sealed federal indictment was filed

 9   in late October 2012; Cole and Jean Philippe were arrested about a week later, and the indictment was

10   unsealed as to them. Pictures of several items stolen from MV were found on Cole's cellphone.

11                  MV also identified Accilien from a photo array. Accilien had a significant criminal

12   history, which included a charge of assault on a police officer, and Deloren found in police files

13   Accilien's last known address, a second-floor apartment on South Oak Drive in the Bronx. Deloren

14   went to that address under the guise of looking for someone else who was supposedly wanted for a

15   different crime. Accilien himself answered the street-level outer door, thereby allowing Deloren to

16   infer that Accilien still lived at and/or frequented that address. An arrest warrant for Accilien was

17   issued.

18                  At about 6:00 a.m. on June 4, 2013, approximately 10 Officers, led by Deloren and

19   Reynolds, went to the South Oak Drive address, knocked on the outer door, and identified themselves

20   as police. Deloren, through the door's window, saw a man he thought was Accilien start to descend

21   the stairs and promptly retreat; the Officers then breached the door and entered. In the second-floor


                                                      6
 1   apartment they found Accilien, a woman and two children, and three other men--including Delva, who

 2   at that time was not a suspect in the kidnapping/robbery.



 3   C. The Denial of Delva's Suppression Motions

 4                  The events following the Officers' entry into the building are recounted in the findings

 5   of the district court in denying Delva's initial suppression motion--which challenged the seizure only

 6   of the drugs and gun. See United States v. Delva, No. 12 Cr. 802, 2014 WL 465149 (S.D.N.Y. Jan.

 7   27, 2014) ("Delva I"). The findings in that opinion--uncontested on appeal, except for a general

 8   challenge to credibility--include the following.

 9                  "The outer door entered onto a staircase that leveled off at a landing adjoining the

10   kitchen. There was no interior door between the stairs and the kitchen." Delva I, 2014 WL 465149,

11   at *2 (citations to the suppression hearing transcript ("H.Tr.") omitted). The apartment consisted of

12   a kitchen, a bedroom/living room (the "living room"), a second bedroom (or "bedroom"), and a

13   bathroom. "The apartment was about 500 square feet in total." Id.

14                         As Reynolds was climbing the stairs, he could see Accilien at the top
15                  looking down at him. Both Reynolds and Deloren were stating: "Police, get
16                  down." Accilien complied and lay down on the floor in the kitchen. As
17                  Reynolds reached the top of the stairs, he saw two other men in the kitchen;
18                  Reynolds stepped further into the kitchen and instructed the two other men to
19                  get down. The kitchen was very small. Reynolds then noticed somebody in
20                  the second bedroom . . . . [whom he] later identified . . . as Delva.

21   Id. at *3 (citations to H.Tr. omitted). Both Reynolds and Deloren observed Delva inside the second

22   bedroom walking toward the kitchen. See id.

23                         Reynolds instructed Delva to get down on the ground. Delva did not
24                  immediately comply; Reynolds had to instruct him several times, and he did
25                  eventually comply. When Delva was lying on the ground, his head was in the
26                  bedroom near the doorway, with the rest of his body and legs stretching behind

                                                        7
 1                 him into the bedroom. Reynolds then stepped either to the side of Delva or
 2                 over Delva to make sure no one else was in the room. Reynolds testified that
 3                 he could not see the entire bedroom from the kitchen and needed to enter the
 4                 bedroom to determine if anyone else was in that room and whether there could
 5                 be any threats coming from that room.

 6                         When Reynolds entered the bedroom and looked to see if anyone else
 7                 was present, he noticed a closet, the door of which was ajar. He saw a clear,
 8                 plastic bag on the floor of the closet that contained a white, powdery substance
 9                 which he believed to be drugs. The bag was on top of or right next to
10                 sneakers. Reynolds testified that he did not touch anything or open anything
11                 before seeing the bag and the sneakers.

12                          Immediately thereafter, Deloren entered the bedroom. He [had]
13                 handcuffed Accilien very quickly and proceeded to the second bedroom. He
14                 saw that Delva was on the ground, his body completely inside the bedroom.
15                 Reynolds was focused on Delva and told Deloren about the bag in the closet.
16                 Deloren stated that the closet door was open when he approached it. He could
17                 see the floor of the closet and saw a clear, plastic bag with a white powdery
18                 substance in it; based on his experience he believed it to be cocaine. Deloren
19                 bent down to pick the bag up and saw that just to the side of it, only a few
20                 inches away, was a sneaker with a firearm in it. The gun was inserted barrel-
21                 first into the shoe. Deloren then used the word "lunch" to notify Reynolds and
22                 others that there was a gun. Deloren then quickly recovered the gun and made
23                 it safe by removing the magazine and emptying the chamber.

24                          As he was handcuffing Delva, Reynolds heard Deloren almost
25                 immediately use the word "lunch," which Reynolds understood to be code for
26                 "gun." Reynolds then moved Delva into the kitchen with the others. Only two
27                 minutes had elapsed between the time the Officers entered the apartment and
28                 the apartment was secured with the men in handcuffs in the kitchen. Deloren
29                 testified that the men in the apartment were handcuffed to ensure officer
30                 safety.

31                        Reynolds and Deloren then brought Accilien into the bedroom and
32                 asked him to identify the other people in the apartment; Accilien identified
33                 Delva as his nephew and the closet in the bedroom as belonging to Delva.

34   Delva I, 2014 WL 465149, at *3-*4 (footnote and citations to H.Tr. omitted) (emphases added).

35                 The district court concluded that given the presence of other people in the apartment

36   and the Officers' knowledge of Accilien's criminal history, "it would . . . have been imprudent and


                                                      8
 1   unreasonable for the Officers to have entered the premises, seen the other men, and not conducted a

2    protective sweep." Delva I, 2014 WL 465149, at *6 (emphasis added). Further,

 3                   when Reynolds saw the defendant in his bedroom, moving towards them, it
 4                   was only prudent for Reynolds to ensure that the defendant was not going to
 5                   create a safety issue. It was therefore perfectly appropriate for Reynolds to
 6                   instruct the defendant to "get down." Reynolds and Deloren testified that,
 7                   when the defendant was on the ground, he was positioned entirely inside the
 8                   bedroom. There is no doubt that it was appropriate for Reynolds to step into
 9                   the bedroom at that point in order to secure the defendant. Once Reynolds
10                   entered the bedroom, it was perfectly reasonable for him to look quickly
11                   around the room to determine if there were any other individuals in the room
12                   who might constitute a safety risk. In doing so, his eyes noticed the open door
13                   to the closet and drugs in plain view. Deloren's entry to assist Reynolds led
14                   to recovery of the drugs Reynolds saw as well as the gun immediately next to
15                   it, which was also in plain view.

16                           There is no evidence in the record that the drugs and gun were not in
17                   the position in which Deloren and Reynolds testified they were in--on the floor
18                   of the closet, with the door open, in plain view.

19                          Under these circumstances, the factual record is straightforward and
20                   supportive of a reasonable search and seizure of the [drugs and gun]. Under
21                   the circumstances described above, the protective sweep conducted by
22                   Reynolds and Deloren was reasonable. In addition, there is no factual basis to
23                   suggest that, once Reynolds and Deloren were in the bedroom, the [drugs and
24                   gun] w[ere] not in plain view. All of the evidence before the Court is that they
25                   were. Given the highly incriminating character of these items, their seizure
26                   was therefore perfectly lawful.

27   Delva I, 2014 WL 465149, at *7 (emphases added).

28                   The district court also noted that, "[o]n cross-examination," at the hearing, "Deloren

29   testified that, when the Officers first went to the residence, their intent was to arrest Accilien but not

30   conduct a search; after recovering the [drugs and gun], the Officers then performed a general search."

31   Id. at *7 n.5. However, the court concluded that that "testimony d[id] not undermine the legality of

32   the recovery of the [drugs and gun]--these items were found in plain view during what was clearly

33   a protective sweep." Id.

                                                         9
1                   At the hearing on Delva's initial motion--to suppress the drugs and gun--Reynolds

2    and/or Deloren testified that in the June 4, 2013 raid on Accilien's apartment, cellphones (one of

3    which they later learned belonged to Delva) and the Accilien Letters had also been seized. Deloren

4    testified that he saw the envelopes on the top of a small cabinet; he recognized that Accilien was the

5    addressee and that the sender was Jean Philippe, whom Deloren had arrested in November 2012 in

6    connection with the kidnapping and robbery of FV and MV.

 7                  During the hearing with respect to the drugs and gun, Delva expanded his suppression

 8   request to include his cellphone. The district court invited supplemental briefing on that request, and

 9   Delva's supplemental reply brief added a request to suppress the Accilien Letters. The government's

10   position was that "law enforcement observed [those] items in plain view"--along with the drugs and

11   the gun--"[d]uring a lawful protective sweep." (Government's Memorandum of Law in Opposition

12   to Defendant David Delva's Motion To Suppress His Cellular Telephone, dated February 3, 2014,

13   at 3-4.)

14                  The district court, relying on evidence presented at the hearing following Delva's

15   motion to suppress the drugs and gun, denied these supplemental motions to suppress Delva's

16   cellphone and the Accilien Letters. See United States v. Delva, 13 F.Supp.3d 269 (S.D.N.Y. 2014)

17   ("Delva II"). The court reiterated many of the findings it had made in Delva I with respect to the need

18   for a protective sweep of the apartment and the plain-view observation of the drugs and gun, see, e.g.,

19   Delva II, 13 F.Supp.3d at 272 ("The facts relevant to resolution of this motion were established at the

20   evidentiary hearing on January 21, 2014. They are recited in this Court's January 27, 2014, 2014 WL

21   465149, decision on defendant Delva's first motion to suppress . . . ."), and it made additional findings

22   focusing on the cellphone and the letters.


                                                        10
 1                   With respect to the cellphone, the court noted that the Officers had gone to the

 2   apartment to arrest Accilien because

 3                   Accilien was alleged to have participated in a brutal robbery and kidnapping.
 4                   At the time of the arrest, the officers who entered the Apartment knew that one
 5                   or more cell phones had been used during the robbery and kidnapping.

 6   Delva II, 13 F.Supp.3d at 271. After noting that the government argued that the Officers had seen

7    "drugs, a gun, and the Cell Phone in plain view" "during the course of legitimate efforts incidental

8    to a protective sweep that was itself incident to the arrest of Accilien," and that it was "undisputed that

 9   the Officers saw the drugs and gun prior to seeing the Cell Phone," id. (emphases added), the court

10   stated that

11                            Delva's arguments on this motion are the same as those on his prior
12                   motion with respect to the gun and drugs: (1) the Officers[] had no need or
13                   right to enter the Apartment; (2) once in the Apartment, the Officers had no
14                   right to enter the bedroom which the defendant shared with others; (3) that the
15                   Cell Phone, which was recovered in the bedroom, was not in plain view; and
16                   (4) even if the Cell Phone was in plain view, it was not in and of itself
17                   contraband, evidence of a crime, or associated with evidence of a crime,

18   Delva II, 13 F.Supp.3d at 271-72 (emphases added). The district court rejected those arguments,

19   noting that Delva

20                   proffered no evidence, nor elicited any evidence on cross-examination, that at
21                   the time it was seized, the Cell Phone was not in plain view in a bedroom that
22                   had been occupied the previous night by Accilien (the robbery and kidnapping
23                   suspect).

24   Id. at 271. After describing Deloren's discovery and unloading of Delva's gun, the court found as

25   follows:

26                           Reynolds then moved Delva into the kitchen with the others. Only two
27                   minutes had elapsed between the time the Officers entered the Apartment and
28                   the Apartment was secured with the men in handcuffs in the kitchen. Reynolds
29                   and Deloren then brought Accilien into the bedroom and asked him to identify
30                   the other people in the Apartment; Accilien identified Delva as his nephew and

                                                         11
 1                  the closet in the bedroom as belonging to Delva. . . .

 2                          The Apartment was small. Two Officers stepped into the bedroom
 3                  with Accilien to ask him who the other individuals were and to whom the
 4                  items in the closet belonged. While that was occurring, the Officers noticed
 5                  and seized a letter and two cell phones. The two cell phones were in plain
 6                  view: one on a television stand and the other on the bed. At about the same
 7                  time, Reynolds [sic] also saw an envelope in plain view with Accilien's name
 8                  as the addressee. Reynolds [sic] saw that the sender of the envelope was one
 9                  of the suspects in the same robbery and kidnapping; the letter had been sent
10                  from the sender's place of incarceration. While the cabinet on which the letter
11                  was located had a number of items on it, Special Agent Reynolds [sic] testified
12                  credibly that there was room for the letter to be in plain view on the cabinet
13                  with the address information visible.

14   Delva II, 13 F.Supp.3d at 273-74 (footnote and citations to H.Tr. omitted) (emphases added).

15                  Having noted that "[p]atently incriminating evidence that is in plain view during a

16   proper security check may be seized without a warrant," id. at 275 (internal quotation marks omitted)

17   (emphasis ours), the district court denied Delva's supplemental suppression motions, concluding as

18   follows:

19                          This Court previously determined that the Officers['] entry into both
20                  the Apartment and the bedroom in which the defendant had been living was
21                  lawful. . . . The Court also previously determined that the drugs and gun
22                  which the Officers seized were in plain view. . . . No facts have been proffered
23                  disputing the fact that the cell phones were observed by Special Agent
24                  Reynolds in plain view on a table and on the bed in the bedroom in which
25                  Delva was arrested.

26                          There were multiple lawful reasons why the Officers had probable
27                  cause to believe that the Cell Phone was evidence of or contained evidence of
28                  criminal activity: the Officers were in the Apartment to arrest a man
29                  (Accilien) whom they were arresting for kidnapping, and they knew that cell
30                  phones had been used in connection with that crime. Accilien identified
31                  himself as an occupant of the bedroom in which the cell phones were found,
32                  and a letter addressed to Accilien was found on a table in that bedroom from
33                  another individual who was already incarcerated for the same crime. At the
34                  time of its seizure, the Officers believed that the cell phones belonged to
35                  Accilien.


                                                      12
 1                          The Officers had probable cause to seize the Cell Phone even if they
 2                  believed or had reason to believe that it may have belonged to defendant
 3                  Delva: Delva had just been handcuffed in the same room, drugs and a gun
 4                  had been found in plain view near him, and Accilien had identified the items
 5                  in the closet as belonging to Delva. The association between narcotics
 6                  trafficking (for which Delva was initially arrested) and cell phones has been
 7                  long established--cell phones can store information and images relating to the
 8                  crime and participants in the crime (that is, who bought and sold the drugs).

 9                          In determining whether probable cause to seize the Cell Phone existed,
10                  the Court looks at the totality of the facts and circumstances as they existed at
11                  the scene. . . . Those facts and circumstances leave no doubt that the Officers
12                  were acting within the law when they seized the Cell Phone. . . . The Fourth
13                  Amendment of the Constitution only prohibits unreasonable searches and
14                  seizures; here, the seizure was perfectly reasonable.FN4

15                                  FN4 On cross-examination, Deloren testified that, when the
16                          Officers first entered the Apartment, their intent was to arrest Accilien
17                          but not to conduct a search; after recovering the drugs and gun, the
18                          Officers then performed a general search. This testimony does not
19                          undermine the legality of the recovery of the Cell Phone--it was found
20                          in plain view during what was clearly a protective sweep.

21   Delva II, 13 F.Supp.3d at 277 & n.4 (citations to H.Tr. omitted) (penultimate emphasis in original;

22   other emphases added).



23   D. The Trial

24                  As indicated above, at the time of his arrest on June 4, 2013, Delva was not a suspect

25   in the kidnapping and robbery of FV and MV. Accilien, who began to cooperate with the authorities

26   almost immediately after his arrest, did not reveal that Delva was involved in those crimes until mid-

27   July. Thus, the drugs and gun found in Delva's closet on June 4 initially led to his arrest only on New

28   York State drug and gun charges. After the Accilien Letters were reviewed by the Officers, however,

29   Delva became a suspect: In one of the letters, received by Accilien several weeks after Jean Philippe

30   was arrested, Jean Philippe wrote that he had not cooperated with the authorities, and he urged

                                                       13
 1   Accilien and Delva to "stand[] tall" and not inform on Jean Philippe. In August 2013, Delva was

 2   rearrested on federal charges, alleging not only narcotics and firearm offenses, but also substantive

 3   and conspiracy kidnapping and robbery crimes against FV and MV.

 4                  At Delva's trial (Cole and Jean Philippe by then had pleaded guilty to charges relating

 5   to the kidnapping and robbery and had been sentenced to prison terms of life plus seven years) the

 6   government's evidence included testimony by FV and MV and law enforcement officials; Accilien

 7   testified about his and Delva's involvement in the kidnapping and robbery and about Delva's narcotics

 8   distribution business. The government also presented evidence that one of the latex gloves recovered

 9   from FV's apartment contained Delva's DNA.

10                  The jury found Delva guilty of conspiring to commit kidnapping and robbery, in

11   violation of 18 U.S.C. §§ 1201 and 1951; conspiring to distribute narcotics, see 21 U.S.C. § 846; and

12   substantive firearms offenses, see 18 U.S.C. §§ 924(c) and § 922(g). It found Delva not guilty of the

13   substantive offenses of kidnapping, robbery, and use of a gun in furtherance of kidnapping and

14   robbery. He was sentenced principally to 360 months' imprisonment, see Part II.B.3. below.



15                                             II. DISCUSSION



16                  On appeal, Delva contends principally that the district court erred in denying his

17   motions to suppress his cellphone and the Accilien Letters, arguing chiefly that the court erred in

18   finding that the seizure of those items occurred during the Officers' protective sweep of the apartment.

19   He also contends, inter alia, that the district court abused its discretion (a) in allowing FV to testify

20   that she was raped during the home invasion, because she could not identify Delva as one of those


                                                        14
 1   who raped her, (b) in excusing a juror before the end of trial, and (c) in imposing a severe sentence

 2   based in part on conduct of which he was acquitted; we find no merit in these contentions for the

 3   reasons stated in Part II.B. below. For the reasons discussed in Part II.A. below, we see no error in

 4   the district court's findings that the cellphone and letters--recognizable as likely evidence (cellphones

 5   having been used in the kidnapping/robbery, and the letters being post-kidnapping/robbery

 6   communications between two of the charged coconspirators)--were in plain view in the second

 7   bedroom; but the court erred in finding that the cellphone and letters were seen and seized during the

 8   Officers' protective sweep. The record and the court's findings reveal that the apartment was secured

 9   before the Officers reentered the bedroom, and that the cellphone and letters were seen only after their

10   reentry. Nonetheless, we affirm the denial of the motions to suppress those items because we

11   conclude that the agents' warrantless reentry into that bedroom was justified by the exigencies of the

12   circumstances, and thus did not violate the Fourth Amendment, given that the agents had found four

13   adult males in the small apartment and had seen narcotics and a gun during the protective sweep, and

14   that that bedroom was the only unoccupied room, other than the bathroom, in which to question

15   Accilien and the others individually in order to determine whom to arrest for possession of the

16   narcotics and gun.



17   A. Fourth Amendment Issues

18                  The Fourth Amendment to the Constitution provides that "[t]he right of the people to

19   be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

20   shall not be violated, and no Warrants shall issue, but upon probable cause . . . ." U.S. Const. amend.

21   IV. "It is axiomatic that the physical entry of the home is the chief evil against which the wording of


                                                        15
 1   the Fourth Amendment is directed." Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (internal quotation

 2   marks omitted). Thus, generally, as "a basic principle of Fourth Amendment law," entries into a home

 3   without a warrant, or "searches and seizures inside a home without a warrant[,] are presumptively

 4   unreasonable," id. at 749 (internal quotation marks omitted); Kentucky v. King, 563 U.S. 452, 459

 5   (2011) (internal quotation marks omitted). However, the Court

 6                  ha[s] also recognized that this presumption may be overcome in some
 7                  circumstances because "the ultimate touchstone of the Fourth Amendment is
 8                  'reasonableness.'" . . . . Accordingly, the warrant requirement is subject to
 9                  certain reasonable exceptions.

10   Id. at 459 (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) ("Brigham City")). The

11   "'few[,] specifically established[,] and well-delineated exceptions,'" Mincey v. Arizona, 437 U.S. 385,

12   390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)), include security-based limited

13   searches in conjunction with an in-home arrest pursuant to an arrest warrant (see Part II.A.1. below),

14   entries into a home in exigent circumstances (see Part II.A.4. below), and seizures by the officers of

15   "any evidence that is in plain view during the course of their legitimate emergency activities," Mincey,

16   437 U.S. at 393 (see Part II.A.2. below).

17                  As a procedural matter, a defendant seeking suppression of evidence found without

18   a search warrant must show that he had a reasonable expectation of privacy in the place or object

19   searched. See, e.g., California v. Greenwood, 486 U.S. 35, 39 (1988); California v. Ciraolo, 476 U.S.

20   207, 211 (1986); Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v. Illinois, 439 U.S. 128, 131

21   n.1 (1978). If such a privacy interest is established, the government has the burden of showing that

22   the search was lawful because it fell within one of the exceptions to the warrant requirement. See,

23   e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Welsh, 466 U.S. at 750 (exigent

24   circumstances); United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir. 1999) (plain view).

                                                       16
1                    "In reviewing the district court's ruling on a motion to suppress, we review its

2    conclusions of law de novo and its factual findings for clear error." United States v. Medunjanin, 752

3    F.3d 576, 584 (2d Cir.), cert. denied, 135 S. Ct. 301 (2014); see generally Ornelas v. United States,

4    517 U.S. 690, 699 (1996) ("a reviewing court should take care both to review findings of historical

5    fact only for clear error and to give due weight to inferences drawn from those facts by resident judges

6    and local law enforcement officers"). In reviewing the denial of such a motion, we "view[] the

 7   evidence in the light most favorable to the government," United States v. Ivezaj, 568 F.3d 88, 96 (2d

 8   Cir. 2009), cert. denied, 559 U.S. 998 (2010), and we give "special deference to findings that are

 9   based on determinations of witness credibility," United States v. Lucky, 569 F.3d 101, 106 (2d Cir.

10   2009), cert. denied, 559 U.S. 1031 (2010). Whether the Fourth Amendment was violated, given the

11   nonerroneous findings of historical fact, is a question of law, which we review de novo. See id.

12   at 105-06.



13           1. Protective Sweeps

14                   Law enforcement authorities generally do not need a search warrant to enter a suspect's

15   home when they have an arrest warrant for the suspect, as "an arrest warrant founded on probable

16   cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives

17   when there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 603 (1980).

18   Further, "[i]t is well settled that a search incident to a lawful arrest is a traditional exception to the

19   [search] warrant requirement of the Fourth Amendment." United States v. Robinson, 414 U.S. 218,

20   224 (1973). Thus, "a search may be made of the person of the arrestee by virtue of the lawful arrest.

21   [In addition,] a search may be made of the area within the control of the arrestee." Id. (emphasis


                                                        17
 1   omitted).

 2                   When a person is arrested inside a residence, the officers may permissibly,

 3                   as an incident to the arrest . . . , as a precautionary matter and without probable
 4                   cause or reasonable suspicion, look in closets and other spaces immediately
 5                   adjoining the place of arrest from which an attack could be immediately
 6                   launched.

 7   Maryland v. Buie, 494 U.S. 325, 334 (1990). Such a security check or "protective sweep" is subject

 8   to limitations. The Buie Court

 9                   emphasize[d] that such a protective sweep, aimed at protecting the arresting
10                   officers, if justified by the circumstances, is nevertheless not a full search of
11                   the premises, but may extend only to a cursory inspection of those spaces
12                   where a person may be found.FN3 The sweep lasts no longer than is necessary
13                   to dispel the reasonable suspicion of danger and in any event no longer than
14                   it takes to complete the arrest and depart the premises.

15                                       FN3 . . . . A protective sweep is without question a "search"
16                           . . . ; [it is] permissible on less than probable cause only because [it is]
17                           limited to that which is necessary to protect the safety of officers and
18                           others.

19   Id. at 335-36 & n.3.



20           2. The Plain View Doctrine

21                   The "plain view" doctrine is a recognized exception to the Fourth Amendment

22   requirement of a warrant for seizures. See, e.g., Horton v. California, 496 U.S. 128, 134 (1990)

23   (objects in plain view are not found through a privacy-invading search; thus, "[i]f 'plain view' justifies

24   an exception from an otherwise applicable warrant requirement, . . . it must be an exception that is

25   addressed to the concerns that are implicated by seizures rather than by searches"). Under the plain-

26   view exception, "if police are lawfully in a position from which they view an object, if its

27   incriminating character is immediately apparent, and if the officers have a lawful right of access to

                                                         18
 1   the object, they may seize it without a warrant." Minnesota v. Dickerson, 508 U.S. 366, 375 (1993);

 2   see Horton, 496 U.S. at 136-37; Illinois v. Andreas, 463 U.S. 765, 771 (1983). "If an article is already

 3   in plain view, neither its observation nor its seizure would involve any invasion of privacy." Horton,

 4   496 U.S. at 133. However, the "plain view" doctrine cannot be invoked to justify an extended search;

 5   "the doctrine is associated only with the seizure of items" that are--as the label indicates--in plain

 6   view. Ruggiero v. Krzeminski, 928 F.2d 558, 562 (2d Cir. 1991).

 7                  Thus, under the "security check" exception, when law enforcement officers have

 8   lawfully entered premises in connection with an arrest, and in the course of making a permissible

 9   quick and limited protective sweep of the premises they see an object whose incriminating character

10   is immediately apparent, "and if the officers have a lawful right of access to the object, they may seize

11   it without a warrant," Dickerson, 508 U.S. at 375; see Horton, 496 U.S. at 136-37. The plain-view

12   doctrine may allow discovered items to be admitted in evidence even where "the discovery of the

13   evidence was not inadvertent." Id. at 130 ("even though inadvertence is a characteristic of most

14   legitimate 'plain-view' seizures, it is not a necessary condition").



15          3. The District Court's Decision

16                  In support of his contention that the district court erred in denying his supplemental

17   motions to suppress his cellphone and the Accilien Letters, Delva argues principally that the court

18   erred in ruling that those items were seen and seized during the Officers' protective sweep of the

19   apartment. He also contends that those items were not in fact in plain view and that the testimonies

20   of Reynolds and Deloren were not credible. Leaving aside the question of whether Delva even has

21   standing to challenge the seizure of the Accilien Letters, which were not authored by or addressed to


                                                        19
 1   Delva--an issue not raised by the government in the district court--we find no basis for reversal.

 2                   The challenges to the court's credibility assessments and to its findings as to where the

 3   cellphone and letters were found do not require extended discussion. First, we see no basis in the

 4   present record for overturning the credibility determinations by the district judge, who had the

 5   opportunity to view and hear the witnesses. Second, for the proposition that the letters were not in

 6   plain view, Delva cites testimony by Accilien at trial that the letters were in the closet. Accilien,

 7   however, was not called as a witness at the suppression hearing. At that hearing, the only witness as

 8   to the location of the letters was Deloren, who testified that he saw them on the top of a low cabinet.

 9   Apart from the district court's misattributing to Reynolds the Deloren testimony as to the observation

10   of the letters, its finding that the Accilien Letters were in plain view is not clearly erroneous.

11                   Delva's contention that the district court erred in ruling that his cellphone and the

12   Accilien Letters were seen and seized during the Officers' protective sweep of the apartment gives us

13   greater pause. While most of the court's findings, further discussed in Part II.A.4. below, are amply

14   supported by the record, we see three difficulties with the court's conclusion that Delva's motions to

15   suppress those items should be denied because they were seen during the protective sweep: (1) the

16   court misunderstood the basis for Delva's principal argument for suppression of the cellphone and the

17   letters; (2) it assumed that its prior findings with respect to the drugs and the gun were fully applicable

18   to the cellphone and the letters; and (3) it failed to take into account that the protective sweep had

19   been completed before the Officers reentered the bedroom and saw the cellphone and letters.

20                   First, the court stated that Delva's arguments in support of his request to suppress his

21   cellphone and the Accilien Letters were "the same as those on his prior motion with respect to the gun

22   and drugs," i.e., essentially that "the Officers had no right to enter" the apartment or the bedroom, and


                                                         20
 1   that the cellphone "was not in plain view" and was not contraband or evidence of a crime. Delva II,

 2   13 F.Supp.3d at 271-72. However, Delva argued that the hearing testimony established that by the

 3   time the cellphone and letters were found, the protective sweep had in fact been completed:

 4                  [T]he [government's] Opposition Memorandum claims the cell phones and
 5                  envelope were observed in the bedroom, "in plain view," during the protective
 6                  sweep. However, this allegation is not accurate and belied by the record. The
 7                  Hearing established, during the protective sweep, only the gun and crack
 8                  cocaine were observed and seized by the agents. This observation, and
 9                  seizure, occurred while Mr. Delva was handcuffed (while lying on the floor of
10                  his bedroom). After the gun and cocaine were recovered from the closet, the
11                  agents lifted Mr. Delva (who was handcuffed) off the ground and walked him,
12                  out of the bedroom, into the kitchen. (Hearing p. 29-30, 45). In addition, at
13                  that time, one of the agents further checked the bedroom closet and looked
14                  under the bed to make sure no one else was in the bedroom. (Hearing p. 50).

15                         After Mr. Delva, and the agents, were out of the, now vacant and
16                 secure, bedroom, the agents asked Mr. Delva for his consent to re-enter and
17                 search his bedroom. (Hearing p. 32). Mr. Delva expressly refused to give
18                 consent to the agents. Id. Nonetheless, thereafter, agents re-entered the
19                 bedroom with Accilien. Supposedly, while in the room, Accilien gave consent
20                 to search the bedroom. During the course of this general search, the
21                 cell phones and envelope were allegedly observed to be in "plain view."
22                 (Hearing p. 87-90). In addition, other items such as a box of ammunition, was
23                 [sic] recovered from a closed drawer. (Hearing p. 87-88).

24                        However, after the protective sweep was completed, and after the
25                 agents had left the bedroom with Mr. Delva, there was no lawful basis to
26                 re-enter the bedroom. The bedroom was clear and secure pursuant to the
27                 prior protective sweep. In addition, Mr. Delva, Accilien and all of the other
28                 occupants had been secured. (Hearing p. 72-73). Moreover, Mr. Delva
29                 expressly refused to give the agents consent to re-enter and search the
30                 bedroom. Under these circumstances, the re-entry into the bedroom, with
31                 Accilien, was not a part of a protective sweep. It was a warrantless re-entry,
32                 into Mr. Delva's bedroom, in violation of the Fourth Amendment. As such, all
33                 items seized (including the cell phone, letters and anything else) must be
34                 suppressed.

35   (Delva Reply Memorandum of Law in Further Support of Defendant's Motion To Suppress Cellular

36   Telephone and Other Property at 3-5 (emphases added).) The court did not acknowledge this


                                                     21
 1   argument.

 2                  Second, the district court noted that it had "previously [in Delva I] determined that the

 3   Officers['] entry into . . . the bedroom in which [Delva] had been living was lawful," Delva II, 13

 4   F.Supp.3d at 277. But that prior determination was made in connection with Delva's initial motion,

 5   which had sought suppression of only the drugs and the gun, see Delva I, 2014 WL 465149, at *1

 6   ("Delva moved to suppress evidence of drugs and a gun (the 'Evidence')"); id. at *7 (concluding that

 7   the record showed a "reasonable search and seizure of the Evidence" because "the protective sweep

 8   conducted by Reynolds and Deloren was reasonable"). The drugs and gun were seen during the

 9   Officers' first visit to the bedroom while they were conducting the protective sweep. There was no

10   testimony that cellphones and letters were seen before Deloren and Reynolds completed their

11   protective sweep of the bedroom and took Delva into the kitchen. Thus, the district court's prior

12   ruling with respect to the drugs and the gun could not be controlling with respect to the cellphone and

13   letters.

14                  Finally, although the district court noted that "the Officers saw the drugs and gun prior

15   to seeing the Cell Phone," Delva II, 13 F.Supp.3d at 271 (emphasis added), it failed to recognize that

16   the second sighting did not occur during the protective sweep, and occurred only after that sweep had

17   been completed and the Officers had vacated the bedroom and then returned. The court found, based

18   on the testimonies of Reynolds and Deloren, that after the Officers entered the apartment, Accilien

19   and the two men other than Delva had promptly complied with the Officers' orders to lie down on the

20   floor and had been handcuffed in the kitchen; that Deloren, after quickly handcuffing Accilien, went

21   into the bedroom where Reynolds was handcuffing Delva; that after Deloren retrieved and unloaded

22   the gun seen in the bedroom closet, Reynolds moved Delva into the kitchen with Accilien and the


                                                       22
1    other two handcuffed men; and that the protective sweep had been completed in no more than two

2    minutes. See Delva II, 13 F.Supp.3d at 271-73; Delva I, 2014 WL 465149, at *3-*4. The court found

3    that after "Reynolds . . . moved Delva into the kitchen with the others . . . . Reynolds and Deloren then

4    brought Accilien into the bedroom" to question him, Delva II, 13 F.Supp.3d at 273 (emphasis added);

5    Delva I, 2014 WL 465149, at *4 (emphasis added), and saw the cellphone and letters "in plain view,"

6    Delva II, 13 F.Supp.3d at 274.

 7                  We conclude that the district court's bottom-line finding that Delva's cellphone and the

 8   Accilien Letters were found "during" the protective sweep, e.g., id. at 277 n.4 ("the Cell Phone . . .

 9   was found in plain view during what was clearly a protective sweep"), is clearly erroneous. The

10   above detailed factual findings make it plain that the Officers returned to the bedroom with Accilien

11   only after the protective sweep had been completed, and that they saw the cellphone and letters only

12   after their return and not during their protective sweep. Thus, the discovery of the cellphone and the

13   letters was not covered by the protective-sweep exception to the Fourth Amendment's warrant

14   requirement.



15          4. The Exigent Circumstances Exception

16                  The conclusion that the plain-view discovery of Delva's cellphone and the Accilien

17   Letters did not occur during the Officers' protective sweep of the apartment, however, does not end

18   our inquiry, for "[w]e are free to affirm on any ground that finds support in the record, even if it was

19   not the ground upon which the trial court relied," Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir.),

20   cert. denied, 516 U.S. 877 (1995). Based on other findings that are not clearly erroneous, we

21   conclude that despite the fact that Delva's cellphone and the Accilien Letters were seen in a room


                                                        23
1    reentered by the Officers after the conclusion of the protective sweep, the Officers' reentry into that

2    room did not violate the Fourth Amendment.

3                    As "reasonableness is always the touchstone of Fourth Amendment analysis,"

4    Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016); see, e.g., Brigham City, 547 U.S. at 403;

5    United States v. Place, 462 U.S. 696, 703 (1983) ("[w]e must balance the nature and quality of the

6    intrusion on . . . Fourth Amendment interests against the importance of the governmental interests

7    alleged to justify the intrusion"), "[i]t is well-settled . . . that the warrant requirement of the Fourth

8    Amendment must yield in those situations in which exigent circumstances require law enforcement

 9   officers to act without delay," United States v. Moreno, 701 F.3d 64, 72-73 (2d Cir. 2012) ("Moreno")

10   (internal quotation marks omitted), cert. denied, 133 S. Ct. 2797 (2013); see, e.g., King, 563 U.S.

11   at 460 ("One well-recognized exception" to the warrant requirement applies when "'the exigencies of

12   the situation make the needs of law enforcement so compelling that [a] warrantless search is

13   objectively reasonable under the Fourth Amendment.'" (quoting Mincey, 437 U.S. at 394) (other

14   internal quotation marks omitted)); United States v. Andino, 768 F.3d 94, 98 (2d Cir. 2014)

15   ("Andino"); United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc) ("MacDonald"),

16   cert. denied, 498 U.S. 1119 (1991).

17                   The various situations in which exigent circumstances may justify a warrantless search

18   "do not necessarily involve equivalent dangers," but in each the agents' action "is potentially

19   reasonable because 'there is compelling need for official action and no time to secure a warrant.'"

20   Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013) (quoting Michigan v. Tyler, 436 U.S. 499, 509

21   (1978)); but see King, 563 U.S. at 467 ("[L]aw enforcement officers are under no constitutional duty

22   to call a halt to criminal investigation the moment they have the minimum evidence to establish


                                                        24
1    probable cause. . . . Faulting the police for failing to apply for a search warrant at the earliest possible

2    time after obtaining probable cause [would] impose[] a duty that is nowhere to be found in the

3    Constitution." (internal quotation marks omitted)). "[T]he general exigency exception, which asks

4    whether an emergency existed that justified a warrantless search [or entry], naturally calls for a

 5   case-specific inquiry" that looks to the "totality of the circumstances." McNeely, 133 S. Ct. at 1559

 6   & n.3; see, e.g., Ohio v. Robinette, 519 U.S. 33, 39 (1996) (the reasonableness inquiry is "fact-

 7   specific"); Birchfield, 136 S. Ct. at 2180 (the "exigent circumstances" exception "always requires

 8   case-by-case determinations").        And in any determination of whether there were exigent

 9   circumstances sufficient to justify conduct for which the Fourth Amendment normally requires a

10   warrant, the fundamental question is whether it was objectively reasonable for the law enforcement

11   officers to believe there was an urgent need for that warrantless conduct. See, e.g., Riley v. California,

12   134 S. Ct. 2473, 2487, 2494 (2014); King, 563 U.S. at 460-62; Mincey, 437 U.S. at 394. "'[T]he

13   ultimate determination of whether a search was objectively reasonable in light of exigent

14   circumstances is a question of law reviewed de novo.'" Andino, 768 F.3d at 98 (quoting Moreno, 701

15   F.3d at 72).

16                   Among the most common exigencies found to validate entry into a home with probable

17   cause but without a warrant are the need to prevent the escape of a felon, see, e.g., United States v.

18   Santana, 427 U.S. 38, 42-43 (1976) (officers may enter a home without a warrant when they are in

19   hot pursuit of a fleeing suspect), and the need to prevent the destruction of evidence, see, e.g., King,

20   563 U.S. at 462; Brigham City, 547 U.S. at 403 (the need "to prevent the imminent destruction of

21   evidence" has long been recognized as a sufficient justification for a warrantless search). "But a

22   warrantless [entry or] search must be strictly circumscribed by the exigencies which justify its


                                                         25
 1   initiation . . . ." Mincey, 437 U.S. at 393 (internal quotation marks omitted). For example, in Tyler,

 2   the Supreme Court ruled that entry into a burning building "to fight a fire requires no warrant, and that

 3   once in the building, officials may remain there for a reasonable time to investigate the cause of the

 4   blaze," 436 U.S. at 511, and during that time they "may seize evidence of arson that is in plain view,"

 5   id. at 509.

 6                   Fire officials are charged not only with extinguishing fires, but with finding
 7                   their causes. Prompt determination of the fire's origin may be necessary to
 8                   prevent its recurrence, as through the detection of continuing dangers such as
 9                   faulty wiring or a defective furnace. Immediate investigation may also be
10                   necessary to preserve evidence from intentional or accidental destruction.
11                   And, of course, the sooner the officials complete their duties, the less will be
12                   their subsequent interference with the privacy and the recovery efforts of the
13                   victims. For these reasons, officials need no warrant to remain in a building
14                   for a reasonable time to investigate the cause of a blaze after it has been
15                   extinguished.

16   Id. at 510 (footnote omitted) (emphases added). However, "[t]hereafter, additional entries to

17   investigate the cause of the fire must be made pursuant to the warrant procedures governing

18   administrative searches." Id. at 511. For similar reasons, our Court, in United States v. Oguns, 921

19   F.2d 442 (2d Cir. 1990), in dealing with a protective sweep, has noted that "[o]nce police eliminate

20   the dangers that justify a security sweep--safety of police, destruction of evidence, escape of

21   criminals--they must, barring other exigencies, leave the residence," id. at 447 (emphasis added).

22   Other exigencies, for example, may include the need to reenter or remain in the premises for the

23   purpose of having the arrestee appropriately clothed, see, e.g., United States v. Di Stefano, 555 F.2d

24   1094, 1101 (2d Cir. 1977); United States v. Gwinn, 219 F.3d 326, 333 (4th Cir.), cert. denied, 531

25   U.S. 1025 (2000), or the need, postarrest, to move to a different room in order to identify and question

26   a third party who has sought to interfere with the arrest, see, e.g., United States v. Ocean, 564 F. App'x

27   765, 771 (6th Cir. 2014) ("[t]he officers' removal of [the third party] from the hallway into the

                                                        26
 1   apartment bedroom was reasonable under the circumstances"); see also id. at 772 (concurring opinion

 2   of White, J. ("The facts support a finding of exigency here.")).

 3                   Our Court's nonexhaustive test for assessing whether the circumstances were

 4   sufficiently exigent to excuse the warrantless conduct, see, e.g., MacDonald, 916 F.2d at 769-70--

 5   which "is similar to the one . . . recognize[d]" by the Supreme Court, King, 563 U.S. at 463--

 6   considers, inter alia,

 7                   (1) the gravity or violent nature of the offense with which the suspect is to be
 8                   charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear
 9                   showing of probable cause . . . to believe that the suspect committed the crime;
10                   (4) strong reason to believe that the suspect is in the premises being entered;
11                   (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6)
12                   the peaceful circumstances of the entry,

13   MacDonald, 916 F.2d at 769-70 (internal quotation marks omitted) ("MacDonald factors"); see, e.g.,

14   Andino, 768 F.3d at 98 & n.3; Moreno, 701 F.3d at 73. These

15                   factors are intended not as an exhaustive canon, but as an illustrative sampling
16                   of the kinds of facts to be taken into account. . . . Sometimes the presence of
17                   a solitary factor suffices, see, e.g., United States v. Gallo-Roman, 816 F.2d 76,
18                   79-80 (2d Cir.1987) (destruction of evidence), alternatively, a combination of
19                   several, see, e.g., United States v. Callabrass, 607 F.2d 559, 563-64 (2d
20                   Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980)
21                   (destruction of evidence and danger to public).

22   MacDonald, 916 F.2d at 770.

23                   Adapting this test to the present case--since we are concerned with (a) the Officers'

24   remaining in the apartment beyond the time when the arrest of Accilien had been accomplished, and

25   (b) a reentry, rather than an initial entry (the Officers having lawfully entered the apartment pursuant

26   to the arrest warrant), into a room in which there were no longer any potentially threatening persons

27   (the protective sweep having been lawfully completed and all adult males having been secured in the

28   kitchen)--we conclude that most of the MacDonald factors, along with other important considerations,

                                                        27
1    based on substantiated facts found by the district court, lead to the conclusion that exigent

2    circumstances justified the Officers' warrantless return to the second bedroom.

 3                  We begin with fact that the Officers, having lawfully entered the apartment with a

 4   warrant to arrest Accilien, fortuitously saw drugs and a gun, with a chambered round, in plain view

 5   during their lawful protective sweep of the bedroom. Drug trafficking is plainly a serious crime, one

 6   often accompanied by violence, see, e.g., United States v. Gaskin, 364 F.3d 438, 457 (2d Cir.) ("guns

 7   are tools of the narcotics trade"), cert. denied, 544 U.S. 990 (2004). There was a clear need for the

 8   Officers to remain in the apartment long enough to ensure, inter alia, that persons engaged in drug

 9   trafficking were not released.

10                  There were four adult males in the small apartment when the Officers arrived around

11   6:00 a.m. The living room, equipped with a mattress on the floor or a pull-out couch, was occupied

12   by the woman and children. (See H.Tr. 72.) The bedroom in which the drugs and gun were found

13   contained not only a bed but an inflatable mattress. (See id. at 48.) There was thus probable cause

14   to believe that the drugs and gun were owned by one of the four men; whoever owned those items was

15   subject to immediate arrest; all four men were suspects.

16                  Although at the time of the Officers' reentry into the by-then-empty bedroom there was

17   no reason to believe that any of the suspects were armed, it was objectively reasonable to fear that if

18   the owner of the drugs and gun were not identified and were allowed to depart he would likely attempt

19   to escape apprehension or further detection. In the interest of protecting the public, it was the

20   responsibility of law enforcement not only to seize the drugs and the gun, but also to determine who

21   owned or possessed them and to place that person under arrest.

22                  No doubt the Officers could have sought (and obtained) a search warrant for the


                                                       28
 1   apartment; but a search would likely not tell the Officers who owned the drugs and gun. The purpose

 2   of their reentry into the bedroom was not to search for additional items that might be found there--a

 3   task that could have been performed without bringing Accilien or any of the other suspects into the

 4   room--but rather to seek information as to who owned the drugs and the gun. See Delva I, 2014 WL

 5   465149, at *4 (the Officers "brought Accilien into the bedroom and asked him to identify the other

 6   people in the apartment"); Delva II, 13 F.Supp.3d at 274 (the Officers "stepped into the bedroom with

 7   Accilien to ask him who the other individuals were and to whom the items in the closet belonged").

 8                  Thus, the Officers reasonably sought to determine expeditiously whom, if anyone other

 9   than Accilien, they should arrest. (See also H.Tr. 84 (the Officers spent some 15-20 minutes "running

10   names of people that were in the apartment"--thereby "discover[ing] an outstanding warrant for David

11   Delva").)

12                  Perhaps, instead of questioning Accilien as to the identities of the other three men and

13   as to who owned the drugs and gun, the Officers could have taken all four men to the police station

14   for questioning. But mere presence at a place in which there are illegal drugs is not a crime.

15   Certainly it was less intrusive for the Officers to attempt to find out immediately whom, other than

16   Accilien, to arrest and whom not to. Further, given the possibility that the drugs and gun did not

17   belong to Accilien, it was reasonable for the Officers to attempt to have him name the owner outside

18   of the presence of the other men, in order to facilitate Accilien's candor and reduce the possibility of

19   intimidation by the owner. But in order to interview Accilien beyond the hearing of the other three

20   men, the Officers were forced to go somewhere other than the kitchen.

21                  The apartment was very small, about 500 square feet in total, consisting of the living

22   room occupied by the woman and children, the kitchen, the bathroom, and the bedroom. There was


                                                       29
1    no door between the kitchen entrance to the apartment and the landing at the top of the stairs; there

2    was no anteroom, or any hallway, in which the Officers could question Accilien privately. In these

3    circumstances, given the need to determine which of the other men in the apartment--if any of them--

4    should be arrested, the Officers' decision to return to the bedroom, the only unoccupied room other

5    than the bathroom, in order simply to question Accilien, or to question any of the other men

6    individually, in order to determine whom to arrest for possession of the drugs and the gun, was

7    objectively reasonable. After Accilien identified Delva and stated that those items belonged to Delva,

8    the Officers arrested Delva.

 9                      In sum, the law enforcement interest in promptly questioning Accilien in private while

10   the other three men were still being detained was strong, and the return to the empty bedroom for that

11   purpose was a reasonable and minimal intrusion into the residents' privacy. Although the government

12   did not argue exigent circumstances in the district court, we conclude that the facts found by the

13   district court, and substantiated by the evidence, provide ample basis for application of the exigent

14   circumstances exception to the Officers' reentry into the bedroom. In these circumstances, as we see

15   no error in the district court's finding that the cellphone and letters were observed in that room in plain

16   view, we conclude that the record required the denial of Delva's motions to suppress the cellphone

17   and the letters.



18   B. Other Contentions

19                      Delva also raises challenges to certain of the court's evidentiary, procedural, and

20   sentencing decisions.




                                                          30
 1          1. FV's Testimony that She Was Raped

 2                  Delva contends that the district court abused its discretion in permitting FV to testify

 3   that during the kidnapping/robbery she was raped. He contends that even if FV was raped, the

 4   government failed to prove that he was a participant or that the rape was reasonably foreseeable to

 5   him, and therefore her testimony about the rape was irrelevant and highly prejudicial. The district

 6   court denied Delva's in limine motion to exclude that evidence, noting that Delva was charged not

 7   only with the substantive offenses of kidnapping and robbery but also with conspiring to commit those

 8   offenses; the court concluded that the rape evidence was relevant and, given the circumstances of the

 9   crimes, was not unfairly prejudicial. See United States v. Delva, No. 12 Cr. 802, 2014 WL 4460360,

10   at *6-*7 (S.D.N.Y. Sept. 10, 2014) ("Delva III"). "We review a district court's evidentiary rulings

11   under a deferential abuse of discretion standard, and we will disturb an evidentiary ruling only where

12   the decision to admit or exclude evidence was manifestly erroneous." United States v. McGinn, 787

13   F.3d 116, 127 (2d Cir. 2015) (internal quotation marks omitted).

14                  FV testified that for about a day, she managed to resist the intruders' orders to summon

15   MV to her apartment and that she gave in only after three of them, in close succession, raped her. Her

16   testimony was directly relevant to the manner in which the robbery succeeded: "[T]hreatened or

17   actual use of force or violence" was an element in the crimes. Delva III, 2014 WL 4460360, at *6.

18                  Further, although Delva contends that there was no evidence to show that he could

19   have anticipated that his codefendants would commit rape, Accilien testified that Jean Philippe

20   instructed Accilien to bring Delva to FV's apartment specifically because Delva was experienced in

21   committing robberies--evidence that the court found had a tendency to show a "relationship of trust

22   between the defendant and his coconspirators," id. at *8. We cannot conclude that there was error,


                                                      31
 1   much less "manifest" error, in the district court's evidentiary ruling.

 2                  We also reject Delva's related contention that his attorney's decision not to cross-

 3   examine FV and attempt to shake her testimony that she had in fact been raped, violated his Sixth

 4   Amendment right to effective assistance of counsel. In order to prevail on such a claim, a defendant

 5   must show, inter alia, "that counsel's representation fell below an objective standard of

 6   reasonableness," Strickland v. Washington, 466 U.S. 668, 688 (1984). An attorney's "strategic choices

 7   made after thorough investigation of law and facts relevant to plausible options are virtually

 8   unchallengeable," id. at 690, and counsel's obligation to consult with his client with regard to

 9   "important decisions" "does not require counsel to obtain the defendant's consent to every tactical

10   decision," Florida v. Nixon, 543 U.S. 175, 187 (2004) (internal quotation marks omitted).

11                  Delva did not and does not claim that his attorney had not conducted a sufficient

12   investigation. His disagreement with counsel, aired to the district court at the start of trial, was an

13   objection as to trial strategy. Delva stated, "Really, basically the whole thing was just about

14   disagreements about his method and the fact that he was going one way that I'd agreed with before.

15   Then at the end, that he changed at the last moment." (Trial Transcript ("T.Tr.") 49.) Counsel stated

16   that after extended consideration, he had made a "strategic decision." (Id.) And in his summation to

17   the jury, he argued that as FV was blindfolded and unable to say which three men had raped her, and

18   that given that at one point only Cole, Jean Philippe, and Accilien were there, it was reasonable to

19   infer that those were the three men, not including Delva, who raped her. (See id. at 1255-56.)

20                  Given the evidence as to the manner in which the kidnapping/robbery was committed,

21   we conclude that counsel's strategic decision to make that argument, rather than to attempt to shake

22   FV's testimony that she had in fact been raped, did not fall below an objectively acceptable level of


                                                       32
 1   competence.



 2          2. The Replacement of Juror No. 7

 3                  Delva also complains of the district court's removal of one of the jurors late in the trial.

 4   We conclude that the circumstances, which we set out below, warranted the juror's removal.

 5                  After the jury retired to deliberate, the district court pointed out that during Delva's

 6   closing argument, Juror No. 7 had acted in an "unusual" manner by frequently nodding her head.

 7   (T.Tr. 1363.) That night, the government ran a background check on the juror and reported that she

 8   appeared to have a criminal record, including a felony conviction for possession of crack cocaine.

 9   The court's voir dire had included the question "Have any of you been charged with a crime or been

10   the subject of any government investigation or accusation?" and the juror had not responded

11   affirmatively. Over Delva's objection, the court decided to question Juror No. 7 to determine whether

12   she in fact had a criminal record and, if so, why she had failed to disclose that fact on her juror

13   questionnaire or during voir dire. The court conducted two such rounds of questioning.

14                  In the first, when asked at the outset how many times she had been arrested, Juror

15   No. 7 responded "Once." (T.Tr. 1383.) Upon further questioning, she again stated that she had been

16   arrested just once (see id.); but then she admitted that she had been imprisoned for a felony conviction

17   and that she had two additional arrests (see id. at 1384-85). She stated that she did not disclose the

18   felony conviction on her juror questionnaire or during voir dire because her civil rights had been

19   restored and that she did not disclose the other two arrests because the cases were old. The court

20   briefly sent the juror out of the courtroom; the government argued that the juror was still being

21   untruthful because her criminal record revealed that she had actually been arrested 10 times from 1986


                                                        33
1    through 2010.

2                    In the second round of questioning, the court proceeded, date by date, to ask Juror

 3   No. 7 whether she had been arrested. She admitted being arrested on three dates (see id. at 1391-93),

 4   including once for her narcotics "[d]ealing" felony (id. at 1393). As to each of the other seven dates,

 5   she denied, or stated that she had no recollection of, being arrested.

 6                   The court found that "[Juror No. 7] was being decidedly untruthful" (id. at 1395), and

 7   it concluded that there was a strong possibility of bias:

 8                   Well, we've gone from one to three arrests, and we're getting I think varying
 9                   and shifting stories about the arrests each time. I don't think we have a clear
10                   answer on whether or not she recalls or doesn't recall earlier arrests. . . . I
11                   think that she's embarrassed about some of the convictions, I think that she's
12                   not wanted to talk about them because she finds them embarrassing, but I
13                   believe that they occurred and I think, based upon how she was responding
14                   when I was going through the other dates, I would bet that if we fingerprinted
15                   her as [counsel] suggests, that we would find that the others occurred as well.
16                   I certainly believe that the three are sufficient. We've gotten several different
17                   answers now on these arrests, and that concerns me.

18                           ....

19                          The court is going to dismiss juror no. 7, based upon juror misconduct,
20                   based upon the court's determination that there are a number of instances
21                   where the juror has been untruthful with the court, starting potentially with the
22                   questionnaire, though there's a possible explanation for that, but certainly in
23                   the voir dire process and then most recently during the questioning this
24                   morning before the court.

25   (T.Tr. 1394-97.) Juror No. 7 was replaced with an alternate and the reconstituted jury was instructed

26   to begin deliberations anew.

27                   The trial judge is authorized to remove a juror for "good cause" after deliberations have

28   begun and to replace that juror with an alternate, so long as the reconstituted jury is instructed to begin

29   deliberations anew. See, e.g., United States v. Yousef, 327 F.3d 56, 160 n.72 (2d Cir.), cert. denied,


                                                         34
1    540 U.S. 933 (2003); see also Fed. R. Crim. P. 24(c)(3) and Advisory Committee Note (1999).

2    "'Good cause' encompasses a variety of problems that may arise with respect to the jury, including . . .

3    misconduct." United States v. Vartanian, 476 F.3d 1095, 1098 (9th Cir. 2007). Misconduct includes

4    lying on voir dire. See, e.g., United States v. Parse, 789 F.3d 83, 111 (2d Cir. 2015).

 5                   Voir dire examination serves to protect [the right to a fair trial] by exposing
 6                   possible biases, both known and unknown, on the part of potential jurors.
 7                   Demonstrated bias in the responses to questions on voir dire may result in a
 8                   juror's being excused for cause; hints of bias not sufficient to warrant challenge
 9                   for cause may assist parties in exercising their peremptory challenges. The
10                   necessity of truthful answers by prospective jurors if this process is to serve its
11                   purpose is obvious.

12   McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (emphases added). The

13   trial judge's decision to replace a juror for good cause is reviewable for abuse of discretion. See, e.g.,

14   United States v. Spruill, 808 F.3d 585, 592 (2d Cir. 2015), cert. denied, 137 S. Ct. 407 (2016); United

15   States v. Reese, 33 F.3d 166, 173 (2d Cir. 1994), cert. denied, 513 U.S. 1092 (1995).

16                   We see no abuse of discretion here in the procedures adopted by the district court or

17   in its ultimate decision to excuse Juror No. 7. Whether or not Juror No. 7's civil rights had been

18   restored, she had no right to fail to respond truthfully to the juror questionnaire or the court's questions

19   on voir dire. Her lack of candor about her criminal record at the pretrial stage, which the court found

20   continued in response to the court's direct inquiry, gave the court ample cause to dismiss Juror No. 7.



21           3. Sentencing

22                   The presentence report ("PSR") prepared on Delva calculated that his base offense

23   level under the advisory Sentencing Guidelines ("Guidelines") was 32, see Guidelines § 2A4.1(a); that

24   level was increased by six steps because a ransom demand was made, see id. § 2A4.1(b)(1); plus two


                                                         35
1    steps because the victims sustained serious bodily injury, see id. § 2A4.1(b)(2)(B); plus six steps

 2   because a victim was sexually exploited during the commission of the kidnapping/robbery, see id.

 3   § 2A4.1(b)(5); plus one step for the grouping of his offenses, see id. § 3D1.4, bringing the total

 4   offense level to 47, which was reduced to the Guidelines maximum of 43. The PSR found that

 5   Delva's criminal history category was IV.        The advisory-Guidelines-recommended range of

 6   imprisonment was thus life imprisonment for the conspiracies to commit kidnapping, robbery, and

 7   narcotics distribution, and for being a felon in possession of a firearm, plus a mandatory consecutive

 8   five-year term for possession of a firearm in furtherance of the narcotics conspiracy.

 9                  The district court found that Delva's criminal history category should be III instead of

10   IV but otherwise adopted the factual findings in the PSR. The court found by a preponderance of the

11   evidence that Delva was present at various times at the scene of the kidnapping/robbery and assisted

12   in those crimes. It concluded that Delva's advisory-Guidelines-recommended range of imprisonment,

13   despite the lower criminal history category, remained life imprisonment plus five years.

14                  Cole and Jean Philippe, for their roles in the kidnapping/robbery, had been sentenced

15   to prison terms of life plus seven years. The court found that Delva's conduct was somewhat less

16   heinous, and it sentenced Delva to a below-Guidelines prison term of 360 months.

17                  On appeal, Delva challenges his sentence as unduly harsh, arguing principally that the

18   court impermissibly sentenced him largely for conduct of which he was acquitted, i.e., the substantive

19   offenses of kidnapping, robbery, and brandishing a firearm in furtherance of the kidnapping/robbery.

20   He argues that MV was unable to identify him as one of the perpetrators of the kidnapping/robbery,

21   that he presented evidence that he was elsewhere during the period in which those crimes were

22   committed, and that the court's finding as to his presence in FV's apartment at various times during


                                                      36
 1   the kidnapping/robbery is erroneous in light of his acquittals by the jury on those substantive counts.

 2   We are unpersuaded.

 3                   A district court commits a procedural error if it bases its sentence on a clearly

 4   erroneous finding of fact. See, e.g., United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en

 5   banc), cert. denied, 556 U.S. 1268 (2009). It commits substantive error if its "decision cannot be

 6   located within the range of permissible decisions." Id. at 189 (internal quotation marks omitted).

 7                   Because the quantum of proof required for a verdict of guilt is higher than the quantum

 8   required for sentencing, it is established that "a jury's verdict of acquittal does not prevent the

 9   sentencing court from considering conduct underlying the acquitted charge, so long as that conduct

10   has been proved by a preponderance of the evidence." United States v. Watts, 519 U.S. 148, 157

11   (1997); see also United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005), cert. denied, 547 U.S.

12   1060 (2006); United States v. Miller, 116 F.3d 641, 685 (2d Cir. 1997) (not error for the sentencing

13   court to rely on evidence at trial that the jury considered insufficient to establish a factual proposition

14   beyond a reasonable doubt, where the court itself finds that proposition established by a

15   preponderance), cert. denied, 524 U.S. 905 (1998). Although Delva asks us not to follow Watts, we

16   are bound by that decision.

17                   Nor are we entitled, as Delva urges, to overturn the district court's finding that he was,

18   at various points, present at the kidnapping/robbery. Although Delva argues that "a far more

19   reasonable view of the evidence" would be "that Delva was not present" (Delva brief on appeal at 69),

20   it is beyond cavil that credibility assessments by the judge who presided over the trial are entitled to

21   considerable deference, see, e.g., Gall v. United States, 552 U.S. 38, 51-52 (2007); United States v.

22   Norman, 776 F.3d 67, 76-77 (2d Cir.), cert. denied, 135 S. Ct. 2333 (2015), and that "[w]here there


                                                         37
1   are two permissible views of the evidence, the factfinder's choice between them cannot be clearly

2   erroneous," Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). Plainly, there was evidence to

3   support the district court's finding that Delva was present at the kidnapping/robbery; Delva

4   acknowledges that the court relied on trial testimony by "Accilien [and] the government's DNA

5   evidence" (Delva brief on appeal at 69). We cannot conclude that the district court's findings are

6   clearly erroneous or that its ultimate decision was beyond the range of permissible decisions.



7                                            CONCLUSION



8                  We have considered all of Delva's arguments on this appeal and have found in them

9   no basis for reversal. The judgment is affirmed.




                                                       38
DENNIS JACOBS, Circuit Judge, dissenting:

      I agree with the majority’s analysis on all issues other than the Fourth

Amendment holding, which is of course the heart of the matter.  As to the

holding that exigent circumstances allowed the survey of a bedroom in which the

police spotted things in plain view, I would remand for the district court to

consider it in the first instance.  The government, which bears the burden of

proof, did not assert exigent circumstances in the district court, or here; and

Delva’s counsel has not had a chance to say a word about it.  Because I would

remand rather than affirm, I respectfully dissent.

      The Fourth Amendment prohibits warrantless searches unless an exception

applies.  The exception for items in plain view is subject to a proviso: “law

enforcement officers may seize evidence in plain view, provided that they have

not violated the Fourth Amendment in arriving at the spot from which the

observation of the evidence is made.”  Kentucky v. King, 563 U.S. 452, 462–63

(2011).  The cellphone and the letters that Delva sought to suppress came into

plain view when the police reentered a bedroom that had already been subject to

a protective sweep.  The question (not an easy one) is whether the officers




                                          1
violated the Fourth Amendment in arriving at the spot (the bedroom) from which

they saw evidence in plain view.

       The district court held that the officers were lawfully in the bedroom as

part of a protective sweep.  The majority opinion demonstrates why the

protective sweep exception is inapplicable, and there is no reason for me to

recapitulate it.  

       The majority opinion nevertheless affirms on the ground of a different

Fourth Amendment exception: exigent circumstances.  In a nutshell, the majority

opinion treats as exigency the need to find a private space to interview a suspect

in a small and crowded apartment with no front door.  The evidence was spotted

when the police took Accilien into the only separate bedroom in the place.  

       The exigent circumstances exception is a limited one.  Welsh v. Wisconsin,

466 U.S. 740, 749 (1984).  The Supreme Court has recognized exigent

circumstances where, for instance, police “need to provide urgent aid,” or where

they are “in hot pursuit of a fleeing suspect,” or where they “fear the imminent

destruction of evidence.”  Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016). 

And importantly, “‘the police bear a heavy burden when attempting to

demonstrate an urgent need that might justify warrantless searches or arrests.’” 


                                         2
Harris v. OʹHare, 770 F.3d 224, 234 (2d Cir. 2014), as amended (Nov. 24, 2014)

(quoting Welsh, 466 U.S. at 749‐50).  

         The government did not argue exigent circumstances in the district court;

the district court did not rule on exigent circumstances; and the government did

not argue exigent circumstances on this appeal.  It follows that Delva’s counsel

has not had an opportunity to argue the point, which has become crucial.  It is

not as though there would have been nothing for Delva’s counsel to say: no

published circuit opinion has found exigent circumstances in a case analogous to

this one; and even if the bedroom was the only space for a private interrogation

inside the apartment, an alternative venue may have been the street or a patrol

car.  

         The government has a “heavy burden” to establish exigent circumstances,

Harris, 770 F.3d at 234; the question is “heavily fact dependent,”  United States v.

Andino, 768 F.3d 94, 98 (2d Cir. 2014); and we lack the benefit of a ruling by the

district court or of briefing by the parties. 

         Rather than affirm, I would remand this case to the district court for

briefing and for a finding as to whether the exigent circumstances exception (or

some other Fourth Amendment exception) applies.


                                            3
