                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0678n.06
                            Filed: August 9, 2005

                                           No. 03-6041

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                             ON APPEAL FROM THE UNITED
v.                                                           STATES DISTRICT COURT FOR
                                                             THE WESTERN DISTRICT OF
JOHNNY KEYS,                                                 TENNESSEE

      Defendant-Appellant.
_________________________________________/


BEFORE: COLE and CLAY, Circuit Judges; HOOD, District Judge.*

       HOOD, District Judge. Defendant Johnny Keys appeals from the November 26, 2002 order

of the United States District Court for the Western District of Kentucky, denying Keys’ motion to

suppress evidence. Because we hold that the district judge clearly erred in denying the motion to

suppress, we REVERSE the district court’s order, VACATE Keys’ conditional guilty plea and

sentence, and REMAND the case for further proceedings consistent with this opinion.

                                       I. BACKGROUND

       A.      Proceedings in the District Court

       On January 29, 2002, a federal grand jury from the Western District of Tennessee handed

down an indictment charging Keys with possession of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g), and possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §


       *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District
of Michigan, sitting by designation.
                                            No. 03-6041

922(k).

          On April 24, 2002, Keys filed a motion to suppress evidence. A magistrate judge conducted

an evidentiary hearing in connection with Keys’ motion, and recommended that the district judge

grant the motion to suppress. After timely filed objections by the United States, the district judge

conducted an evidentiary hearing of her own. The district court denied Keys’ motion on November

26, 2002, and Keys entered a conditional guilty plea.

          On May 21, 2003, the district court conducted a sentencing hearing during which the judge

suspended the imposition of sentence until Keys appeared for the conclusion of the sentencing

hearing, scheduled for May 23, 2003. Keys did not appear as scheduled, and the district court issued

a warrant for his arrest. Nearly two months later, on July 18, 2003, Keys was arrested. Keys was

again brought before the district judge, who sentenced Keys to 105 months imprisonment to be

followed by three years of supervised release.

          B.     Substantive facts

          On September 13, 2001, Memphis police officer Todd Ledgerwood observed a green

Chevrolet Malibu driving slowly in a residential neighborhood. After seeing the car come to a stop,

Ledgerwood observed Keys exit the vehicle and attempt to enter a duplex by first trying to open the

door, then, upon finding the door locked, banging on the door and shouting for someone to let him

in. Ledgerwood left his marked squad car and called out to Keys. Keys initially walked towards

Ledgerwood, but hesitated. Ledgerwood heard what he described as a clattering noise, sounding

like something metallic striking the concrete beneath Keys’ feet. Looking in that direction,

Ledgerwood saw a silver gun near Keys. Keys then took flight, with Ledgerwood giving chase,


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leaving the gun where it lay. Keys was apprehended after running nearly three blocks away from

the door of the duplex. Both Ledgerwood and Keys then returned to the scene where the gun was

left behind.

       Upon returning, the gun could not be found where it had been originally dropped. A witness

indicated that someone called “grandma” had come out of the duplex Keys had sought entry to and

retrieved the weapon. Ledgerwood proceeded to knock on the door, which was answered by an

elderly man. Ledgerwood asked for “grandma,” and a female later identified as Keys’ grandmother,

Mollie Keys, then came to the door. Ledgerwood asked if she had in fact taken the gun from

outside. Ledgerwood claimed she indicated the gun was in the freezer, whereupon the officer

retrieved the weapon and promptly left the duplex.

       When questioned as to why he entered the home, Ledgerwood gave the following testimony:

       One, because I had a belief that the evidence had been removed from my crime scene
       and, two I was really - I was nervous about where that gun would end up. I mean I
       didn’t want any kids getting shot or possibly that weapon falling into the wrong
       hands. You know, it’s evidence and - it’s not just evidence, it’s very dangerous
       evidence.

Upon inspection, Ledgerwood discovered the gun was in fact loaded. He also discovered that the

gun’s serial number had been removed. A subsequent background check of Keys’ record showed

that he was previously convicted of a felony. Ledgerwood estimated he had been inside the home

for around three minutes. On cross-examination, Ledgerwood told the court “grandma” told him

the gun was “[i]n the kitchen, it’s in the kitchen.” The officer indicated he heard “grandma” make

this statement as clearly as he could hear defense counsel’s voice in court. Following Ledgerwood’s

testimony, defense counsel called Mollie Keys as a witness. Defense counsel informed the court and


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government counsel that Mollie Keys’ larynx was removed in 1979 due to throat cancer, a fact

previously unknown by the government. The court permitted Mollie Keys to write down her

responses to counsels’ questioning. Through her writing, Mollie Keys testified to the following

facts: Johnny Keys stays with her in her home, he has clothes in the home, and he possesses keys

to the door. Mollie Keys also testified that Ledgerwood told her to give up the weapon or she would

go to jail. She stated the officer entered the home without her permission and retrieved the gun

himself. Mollie Keys’ testimony does not detail how Ledgerwood knew where to look for the

weapon, as she did not allege that he spent more than a few minutes in the home. Mollie Keys did

admit she had indicated her possession of the weapon prior to Ledgerwood’s entry into the duplex.

However, she denied having gone outside to retrieve it. Instead, Mollie Keys stated she normally

kept the loaded firearm in her freezer.

       The district judge denied the motion to suppress, finding that although the evidence

presented by the government did not support the consent of Mollie Keys to Ledgerwood’s

warrantless entry of the duplex, Ledgerwood’s actions were nonetheless constitutional due to the

presence of exigent circumstances. The district court specifically held Mollie Keys was unable to

speak due to her throat condition, but that “she communicates fairly easily by gesture and mouthing

words.” The court below also recognized the disparity this fact created between the testimony of

Ledgerwood and the testimony of Mollie Keys. Resolving the discrepancies in their testimony was

not necessary in the district court’s view, as “[u]nder either version of the events, Ms. Keys did not

consent to the search.”

       Nonetheless, the district court denied the suppression motion based on the finding that


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Ledgerwood reasonably believed loss or destruction of evidence was imminent. The district court

noted Ledgerwood credibly testified that he entered the residence “because he was concerned about

the removal of evidence and its dangerous nature.” The court went on to deny the motion to

suppress based on the removal of evidence claim. The court did not specifically address the asserted

dangerous nature justification for making a warrantless entry. In its order, the court wrote as

follows:

               The circumstances indicated a probability of deliberate removal of the
       weapon so that officers would not have access to it and thus represented a likely
       effort to assist Mr. Keys. Ledgerwood also had reason to believe that at least
       ‘grandma’ was in the house . . . .
               Before he knocked, Ledgerwood had a reasonable belief that loss or
       destruction of evidence was imminent. Here, the evidence subject to loss or
       destruction in the event of delay included possible fingerprints and ammunition as
       well as the gun. Moreover, contrary to the magistrate judge’s suggestion, the only
       possible avenue for destroying evidence is not flushing it down a toilet. Heat, for
       example, could destroy a weapon’s usefulness as evidence. Moreover, evidence can
       be concealed on occasion so that officers are unable to find it.
               Seizure of the weapon in this case was justified by exigent circumstances.
       Moreover, the intrusion into the home was limited in scope to the minimum
       necessary to prevent loss or destruction. As the government points out, securing the
       residence to obtain a search warrant and executing the warrant would have been far
       more intrusive that [sic] what in fact occurred.”

Shortly after the denial of the motion to suppress, Keys pled guilty to Count 1 of the indictment,

felon in possession of a firearm, preserving his right to challenge the suppression ruling on appeal.

                                        II. DISCUSSION

       A.      Standard of Review

       In reviewing the denial of a suppression motion, the district court’s factual findings are

reviewed for clear error. See, e.g., United States v. Newton, 389 F.3d 631, 635 (6th Cir. 2004)

(citing United States v. Helton, 314 F.3d 812, 820 (6th Cir. 2003)). Conclusions of law are reviewed

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                                            No. 03-6041

de novo. Id.

       B.      Analysis

       The Fourth Amendment of the United States Constitution prohibits government actors from

entering a home without a warrant supported by probable cause, subject to a few narrow exceptions.

See Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 639 (1980). As the Supreme

Court stated, “[i]t is a basic principle of Fourth Amendment law that searches and seizures inside

a home without a warrant are presumptively unreasonable.” Id. at 586. In Welsh v. Wisconsin, the

Court emphasized that “exceptions to the warrant requirement are ‘few in number and carefully

delineated.’” 466 U.S. 740, 749, 104 S. Ct. 2091, 80 L. Ed.2d 732 (1984) (quoting United States v.

United States District Court, 407 U.S. 297, 318, 92 S. Ct. 2125, 32 L. Ed.2d 752 (1972)).

       One such exception is when exigent circumstances are found to exist. As exigency is defined

as “‘a situation where the inevitable delay incident to obtaining a warrant must give way to an urgent

need for immediate action.’” United States v. Morgan, 743 F.2d 1158, 1162 (6th Cir. 1984) (quoting

United States v. Flickenger, 573 F.2d 1349, 1355 (9th Cir. 1978)); accord United States v. Curzi,

867 F.2d 36, 41 (1st Cir. 1989) (defining an exigency as when “there is such a compelling necessity

for immediate action as will not brook the delay of obtaining a warrant”). There are two

requirements for a finding of exigent circumstances: (1) a reasonable belief that someone is inside

the dwelling; and (2) a reasonable belief that the loss or destruction of evidence is imminent. United

States v. Radka, 904 F.2d 357 (6th Cir. 1990); see also, United States v. Sangineto-Miranda, 859

F.2d 1501 (6th Cir. 1988) (finding exigent circumstances in warrantless entry when officers

reasonably believed drugs were in building, someone was inside, and occupants may soon become


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aware that police are after them). In order for exigent circumstances to justify a warrantless search,

the situation must be one where real immediate and serious consequences will certainly occur if

police officers postpone their action in order to obtain a search warrant. United States v. Williams,

354 F.3d 497 (6th Cir. 2003). Exigent circumstances are to be narrowly construed when they are

sought to be applied to residential premises. United States v. Nelson, 459 F.2d 884 (6th Cir. 1972).

Since warrantless home entries are presumptively unreasonable, Payton, 445 U.S. at 586, “the

burden is on the government to demonstrate exigent circumstances that oevercome the presumption

of unreasonableness.” Welsh, 466 U.S. at 750; accord Morgan, 743 F.2d at 1162.

       This Circuit recently examined the exigency exception to the warrant requirement. See

United States v. Chambers, 395 F.3d 563 (6th Cir. 2005). In affirming the granting of a motion to

suppress evidence, Chambers held a warrantless entry into a home was not justified by exigent

circumstances. The court considered a warrantless search of a trailer home and garage in a remote

area of Tennessee, which yielded evidence of a methamphetamine laboratory. Id. at 565.

       The court detailed the basic requirement for a warrantless search based on exigent

circumstances to be held valid. “In order for a warrantless search to pass muster, probable cause

must exist, but ‘no amount of probable cause can justify a warrantless seizure,’ because, in addition,

the cause of the search must be based on an ‘emergency’ and hence, ‘inadvertent’ or unanticipated.”

Id. (internal citations omitted). Chambers went on to note that “[w]hen there is neither a warrant

nor consent, courts will only permit a search or seizure to stand under extraordinary circumstances.”

Id. The Chambers court held that in the situation before it, any exigent circumstance was the by-

product of law enforcement officers’ own conduct. Id. at 566. Although Chambers is not directly


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on point here, it does provide important guidance for evaluating the instant matter.

       It should come as no surprise that most of the cases where a finding of exigent circumstances

has been upheld involved illegal drugs as the evidence in question. The fear is that once suspects

in drug cases become aware of a police presence, they will immediately set about destroying the

most relevant evidence: the drugs. See, e.g., United States v. Smith, 386 F.3d 753, 760 (6th Cir.

2004). A common, and very easily accomplished, method of destroying drug evidence is by flushing

it down the toilet. Smith held there was “insufficient evidence in th[e] record to support a reasonable

belief that the destruction of the large amount of cocaine involved in this case was imminent.” Id.

In reaching its conclusion, the Smith court expounded on the meaning of a “reasonable belief” in the

context of finding exigent circumstances:

       The mere possibility or suspicion that a party is likely to dispose of evidence when
       faced with the execution of a search warrant is not sufficient to create an exigency.
       Nor is the generalized and often recognized fear that destruction of evidence is an
       inherent possibility during the execution of a warrant adequate grounds to find
       exigent circumstances, although this is more likely to be accepted when the drugs are
       in easily disposable quantities.

Id. (citing United States v. Bates, 84 F.3d 790, 796 (6th Cir. 1996)).

       There are three types of evidence presently at issue: the fingerprints on the gun, ammunition

in the gun, and the gun itself. The district court found the fingerprints and ammunition were clearly

in danger of loss or destruction, while the actual weapon could have been concealed or intentionally

damaged. With respect to fingerprints, the nature of such evidence makes it very easily lost or

destroyed.1 However, Keys’ fingerprints on the weapon are unlike cases involving blood alcohol


       1
          It should also be noted that fingerprint evidence on firearms is generally not available.
“Certain items, such as firearms, are not conducive to locating fingerprint evidence, and

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levels, cited in support of Ledgerwood’s search, where there may not be any other evidence of the

defendant’s guilt. The same is true of the ammunition as well. Indeed, possession of a firearm was

the charge; finding the gun to be loaded is not a necessary element of the offense. Here the central

piece of evidence is the gun itself, and the issue is the proper manner in which a law enforcement

officer should go about obtaining such evidence.

       Feared concealment of the firearm is not enough to evade the warrant requirement. See, e.g.,

United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996) (“Evidence that firearms are within a

residence, by itself, is not sufficient to create an exigency.”; United States v. Dawkins, 17 F.3d 399,

406 (D.C. Cir. 1994) (“[W]e have never found exigency solely on the basis that police have

information that firearms are located in a private home.”) (emphasis in original). In this case, the

extent of possible concealment was limited to the Keys household. Based on his knocking on the

door and communicating with Mollie Keys, Ledgerwood determined the gun was in fact inside the

home. Ledgerwood and his fellow officers on the scene could have posted officers at each entry

and/or exit, thereby securing the premises until a search warrant had been obtained and executed.

See, e.g., Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 82 L. Ed.2d 599 (1984);

United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001).

       Nor can making a hypothetically less intrusive warrantless entry be a valid basis for evading

the Fourth Amendment’s warrant requirement. Such a belief, even in good faith, would enable




therefore, although firearms evidence is examined for prints, it is not unusual that identifiable
prints are seldom found on firearms.” 1 Adrienne C. Lynch, Criminalistics, § 6.3.3(b) (MCLE,
Inc. 2004) (reprinted with permission from Massachusetts Expert Witnesses (Peter M. Lauriat, et
al., eds., MCLE, Inc. 2002)) (citing Commonwealth v. Evans, 439 Mass. 184, 202 (2003)).

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countless warrantless searches and seizures based on law enforcement’s allegation that it saved the

defendant or a third-party further intrusion or hassle.

       Only the fear of destruction of evidence remains as a proper rationale for allowing a

warrantless entry. As an example, the district court noted the possibility of using heat to destroy the

gun in the Keys home. While heat may indeed affect the usefulness of the weapon as evidence, by

obliterating the serial number for instance,2 it is doubtful that a firearm could be destroyed while

police secured the area and simply waited to obtain a valid search warrant before entering the home.

At oral argument, the Government admitted it was unlikely that the gun could have been destroyed

in the time it would have taken Ledgerwood to get a valid search warrant. We agree with this

assessment, and hold that a fear of destruction did not provide an exigent circumstance in this

circumstance.

       A risk of danger may also provide an exigent circumstance upon which to base a warrantless

entry into a residence. See, e.g., Williams, 354 F.3d at 497. Williams held that a risk of danger

exigency exception applies only in situations involving a need to protect or preserve life or to avoid

serious injury to police officers or other individuals. Id. Cases approving a warrantless entry to

seize a gun may involve exigent circumstances. See, e.g., United States v. Johnson, 106 Fed. Appx.

363 (6th Cir. 2004) (unpublished). In Johnson, the court held exigent circumstances justified police

officers’ warrantless entry into a residence to seize a shotgun. Id. There the officers were

responding to a report of a man, the defendant, firing two shots into the air, reloading the gun, then



       2
           As it was later discovered, the gun in question here already had an obliterated serial
number.

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running inside the house. Id. The house into which the defendant fled was located in a residential

neighborhood where children resided. Id. On this basis, Johnson held there was ample justification

for fearing for the safety of the officers and individuals both inside and outside of the home. Id.

       This case lacks the risk of danger elements found in Johnson. Although Ledgerwood

indicated he was “nervous about where that gun would end up,” the district court did not base its

decision on a risk of danger exigency. Other than Ledgerwood’s assertion, there is not enough in

the record to support denial of Keys’ motion to suppress on a risk of danger basis.

                                       III. CONCLUSION

       For the reasons set forth above, we REVERSE the district court’s order, VACATE Keys’

conditional guilty plea and sentence, and REMAND the case for further proceedings consistent with

this opinion.




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