                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3501
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District of
                                        * Nebraska.
Michael A. Valencia,                    *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 15, 2007
                                 Filed: August 23, 2007
                                 ___________

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      Police officers entered the apartment of Michael A. Valencia without a warrant,
performed a protective sweep, and thereafter obtained a search warrant and recovered
a short-barreled shotgun from the home. The government charged Valencia with
possession of an unregistered firearm. 26 U.S.C. §§ 5841, 5861(d), and 5871.
Valencia claimed that the initial, warrantless entry into his home violated the Fourth
Amendment, and he moved to suppress the shotgun as the fruit of the allegedly
unconstitutional search. The district court1 denied the motion because it found that
exigent circumstances rendered the officers’ warrantless search of the home
reasonable under the Fourth Amendment. Valencia entered a conditional guilty plea
preserving his right to appeal the denial of his motion to suppress evidence. Valencia
now exercises that right, and we affirm.

I. BACKGROUND

       At 12:28 a.m. on the morning of November 21, 2004, Lincoln, Nebraska police
officers Travis Ocken and Tom Domanski received a dispatch that several callers had
reported that someone had fired multiple shotgun shells from an apartment building
in central Lincoln. According to the dispatch, shotgun pellets had fallen in a parking
lot across the street, the shots had come from apartment five, and the suspected
shooter was a Hispanic male.

       Ocken and Domanski arrived at the scene and encountered Valencia, who was
walking away from the building. Valencia admitted that he lived in apartment five,
and later stated that there was no one in the apartment. After conducting a pat-down
search and finding no weapons, Ocken questioned Valencia about the reports of
gunshots originating from his apartment. Valencia claimed ignorance, and Ocken
escorted him to his police cruiser for detention pending further investigation of the
reported gunshots.

      Meanwhile, Domanski entered the apartment building to question Hussain Al-
Waely, a building tenant who lived in the unit immediately below apartment five and
had called to report the gunshots. Al-Waely told Domanski and Sergeant Jeff Bucher,


      1
       The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the report and recommendation of the Honorable David L.
Piester, United States Magistrate Judge for the District of Nebraska.

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who arrived shortly after Domanski made contact with Al-Waely, that he heard one
shot come from apartment five. He said that Kristina Christensen, who claimed to live
in apartment five with her boyfriend, then came to Al-Waely’s apartment. Al-Waely
heard several more gunshots after Christensen arrived, and Al-Waely called the police.
Christensen, who was present in Al-Waely’s apartment during the questioning, told
officers that no one was in apartment five. She was uncooperative in answering other
questions about the incident.

       Another officer arrived at the scene to assume supervision over Valencia in the
police cruiser while Ocken joined Bucher and Domanski. After checking common
areas inside and outside the apartment building and failing to find any physical
evidence, Bucher, Domanski, and Ocken met and discussed the need to determine
whether the shooter or any victims were still within apartment five. Around 12:45
a.m., they decided to enter the apartment. After knocking on the door and receiving
no response, Domanski spent roughly ten minutes unsuccessfully trying to pick the
lock. At that point, Captain Jonathan Sundermeier arrived and ordered the officers to
kick in the door to gain entry. The officers did so, and they entered the apartment at
1:01 a.m., thirty-three minutes after receiving the initial dispatch regarding the
gunshots.

       Domanski and Ocken made a two-minute protective sweep of the apartment,
finding no victims but noticing shotgun shells and casings on the floor. They did not
seize any evidence. They exited the apartment, and Domanski stood guard at the door
while Ocken and Sundermeier obtained a search warrant. Two hours later, with a
warrant in hand, the officers re-entered the apartment and performed a thorough
search. They seized a .12 gauge short-barreled shotgun, expended shell casings, and
a spilled box of live shells.

     The government indicted Valencia for possession of an unregistered firearm.
Valencia moved to suppress evidence seized from the apartment, arguing that it

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constituted the fruits of a warrantless, unconstitutional search of his apartment. A
magistrate judge held a hearing on the motion and recommended denying it. The
magistrate judge found that exigent circumstances—including urgent health and safety
concerns related to the possibility that victims, the shooter himself, and/or the weapon
remained inside the apartment—justified the warrantless entry. The district court
agreed and adopted the magistrate judge’s report and recommendation.

      Valencia thereafter entered into a plea agreement with the government, whereby
he pled guilty but reserved the right to appeal the district court’s denial of his motion
to suppress evidence. He now brings that appeal, arguing that the district court erred
in finding that exigent circumstances justified the search under the Fourth
Amendment.

II. DISCUSSION

       In an appeal of a motion to suppress evidence, we review the district court’s
factual findings for clear error and its ultimate determination of whether those facts
amounted to a constitutional violation de novo. United States v. Janis, 387 F.3d 682,
686 (8th Cir. 2004). When the government enters a defendant’s home without a
warrant, we presume that the search was unreasonable and therefore in violation of the
Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). This
presumption is rebuttable in certain situations, however. One such situation exists
when the government demonstrates that exigent circumstances “make the needs of law
enforcement so compelling that the warrantless search is objectively reasonable under
the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 394 (1978). “One
exigency obviating the requirement of a warrant is the need to assist persons who are
seriously injured or threatened with such injury.” Brigham City v. Stuart, 126 S. Ct.
1943, 1947 (2006). A search under the exigent-circumstances doctrine is reasonable
“as long as the circumstances, viewed objectively, justify [it].” Id. at 1948 (quotation
omitted). The searching officers’ subjective motivations are irrelevant. Id.

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        In this case, the circumstances giving rise to exigency are clear. Several
shotgun blasts were heard coming from an urban apartment. Some pellets landed
across the street. When police arrived, they encountered the apparent tenant of the
apartment where the shots allegedly originated, and he denied responsibility. Another
part-time occupant refused to shed any light on the situation. As a result, all the police
officers could have reasonably known at the time they entered Valencia’s apartment
was that a deadly weapon had been fired multiple times by someone from that location
roughly thirty minutes earlier, and some pellets from one or more of those shells
landed across the street. The other shells were unaccounted for, no one had confessed
to firing a weapon, and no weapon had been found. Viewing the circumstances
objectively, these facts create clear justification for a reasonable law-enforcement
officer to enter the apartment without a warrant to secure the shotgun and to discern
if the shooter or any victims in need of medical attention remained inside. See Janis,
387 F.3d at 687-88 (finding exigent circumstances sufficient to justify warrantless
entry into a home to secure a recently discharged handgun); United States v.
Arcobasso, 882 F.2d 1304, 1306 (8th Cir. 1989) (finding exigent circumstances
sufficient to justify warrantless entry into a home where shots had been fired, even
after arresting the presumed shooter, to ascertain whether there was “a shooting victim
or another armed person inside”).

       Valencia nevertheless argues that the apparent exigency of the situation given
the above facts is undercut by police officers’ actions upon arriving at the scene. The
officers did not immediately enter the apartment, but rather interviewed Valencia,
Christensen, and Al-Waely, scanned the area for evidence, and spent ten minutes
unsuccessfully attempting to pick the lock before finally kicking down the door.
Furthermore, Valencia contends that they had taken the suspect (him) into custody,
Christensen had told officers that no one else was inside the apartment, and no shots
were fired after officers arrived. If the situation was truly so urgent as to justify a
warrantless entry into the apartment—if the officers truly believed that the shooter,



                                           -5-
a victim in need of aid, or some other emergency awaited them there—Valencia
argues that the officers would have entered more swiftly.

       Valencia’s argument fails for several reasons. While the officers’ actions might
suggest that they did not subjectively possess an overwhelming suspicion that they
would find any victims or immediate threats in the apartment, we evaluate the
constitutionality of the search by looking only to whether they “had an objectively
reasonable basis for believing” that exigent circumstances necessitated warrantless
entry into the apartment. Stuart, 126 S. Ct. at 1949. For the reasons stated above, the
facts of this case presented the officers with just such an objectively reasonable basis
for the search, regardless of their subjective expectations when they broke down the
door.

       Further, to the extent that Valencia argues that his custody and the time lapse
between the gunshots and the officers’ entry had eliminated the exigency of the
situation, we disagree. First, Valencia denied having fired any weapons, and thus
generated a reasonable basis for officers to believe that the shooter may still be inside
the apartment. Second, officers knew that several shells had been fired and both
Valencia and Christensen gave evasive responses to their questions, thus giving rise
to the possibility that one or more victims could be inside. Under such circumstances,
the lapse of roughly thirty minutes could not have objectively served to reduce the
exigency of the situation by such a degree as to render the search unconstitutional.
See United States v. Jones, 635 F.2d 1357, 1361-62 (8th Cir. 1980) (holding that the
police responded properly to an exigent circumstance created by a gunshot when they
took one hour to conduct “careful police work . . . [first seeking] to elicit a response
from the suspect and then attempt[ing] to obtain a key in an effort to avoid forcible
entry”).




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III. CONCLUSION

    For the foregoing reasons, we affirm the judgment of the district court.
                    ______________________________




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