* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 21 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

STEPHEN D. THORNTON,

Petitioner-Appellant,

v. STATE OF OKLAHOMA,

Respondent-Appellee. No. 02-7130 (D.C. No. 01-CV-288-S) (E.D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner seeks review of the denial of his petiti on for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. As r equired by 28 U.S.C.1 Although he has also argued that his trial counsel was constitutionally

ineffective for failing to challenge the search, pe titioner did not seek a COA on that claim. Consequently, we deem it waived. -2- § 2253(c)(1)(A), he requested a certificate of appe alability (COA), which we granted as to the issue of whether the officer’s un warranted search was based on exigent circumstances. 1 Petitioner was convicted in state court in Oklahomaof manufacturing methamphetamine. Oklahoma police were contacted byan informant, whose reliability was then unknown to them. The informant advised that petitioner had asked for Vicks inhalers in order to make methamphe tamine. The officers placed a body wire on the informant and sent him with the inhalers to meet petitioner, after which they monitored the wire while petitione r showed the informant how to make the drug. As the officers were monitoring (an d taping) the wire, they learned that petitioner had created a finished prod uct. The officers then entered petitioner’s home, where they noticed a strong chem ical smell. In the kitchen they observed broken inhalers, methamphetamine in aPyrex pie pan, a spoon, syringe, and muriatic acid. This evidence was seiz ed and used at petitioner’s trial. On direct appeal, with new counsel, petitioner alle ged that his constitutional rights were violated by the warrantl ess search of his home and seizure of the above-mentioned evidence. He also co ntended that trial counsel was2 We need not consider the state’s argument, raised f or the first time on appeal, that Stone v. Powell , 428 U.S. 465 (1976), bars our consideration of petitioner’s Fourth Amendment claim. -3- ineffective for failing to move to suppress the evi dence. The Oklahoma Court of Criminal Appeals (OCCA) determined that the warrant less search was based on exigent circumstances and that the tape recording o f the events inside petitioner’s home provided the independent corroboration needed to establish the informant’s trustworthiness. The OCCA further held that any mo tion to suppress would have been denied and therefore trial counsel was not ine ffective for failing to file such motion. The district court found the OCCA’s decision on both issues to be consistent with federal law and denied the habeas p etition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 2 Under the provisions of the Antiterrorism and Effec tive Death Penalty Act (AEDPA), when the state courts have adjudicated a p etitioner’s claims on the merits, a federal court may grant a writ of habeas corpus only if the state adj udication of the claim (1) ‘resulted in a decision that was contraryto, or involved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court . . . ,’ § 2254(d)( 1); or (2) ‘resulted in a decision that was based on an unreasonable det ermination of the facts in light of evidence presented in the state c ourt proceeding,’ § 2254(d)(2).-4-

Cook v. McKune, 323 F.3d 825, 829 (10th Cir. 2003). In addition, w e will presume correct any state court factual finding, ab sent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). It is petitioner’s obligation to rebut that presumption. Darks v. Mullin , 327 F.3d 1001, 1007 (10th Cir. 2003). Under Supreme Court precedent, “police officers nee d either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.” Kirk v. Louisiana , 536 U.S. 635, 638 (2002). Petitioner claims ther e were no exigent circumstances because in the time i t took to buy the inhalers, wire the informant, and monitor the conversation in side petitioner’s home, police could have obtained a warrant. He further contends that the OCCA failed to quote any federal law in its summary opinion uphold ing his conviction. Pet’r Reply Br. at 6. Here the police did not have probable cause for a w arrant when they were approached by the unknown informant. Indeed, probable cause did not exist until they had monitored the wire long enough to become aware that petitioner had created a finished product. Prior to that time, th e officers lacked sufficient information and adequate opportunity to seek a warr ant. According to respondent, and not denied by petitioner, the offic ers then immediately gained entry to the residence. The OCCA held: “The potential for easy destruction of the evidence in this case provided the exigent circumst ances needed to support the-5-

warrantless search.” Unpacking this statement, it consists of a factual finding that there was a potential for easy destruction of the evidenc e, and a legal conclusion that this constituted exigent circumstances. As to the factual finding, we have no basis for questioning the state court’s conclusion – let alon e the clear and convincing evidence required to overcome the presumption in favor of fi nality of the state court judgment. As to the legal conclusion, we cannot grant relief unless the OCCA’s conclusion

was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supreme Court. T he Supreme Court has not provided detailed guidance regarding the scope of e xigent circumstances, but cases recognize that the threat of imminent destru ction of evidence, coupled with probable cause, can justify a warrantless entry and search. See generally Schmerber v. California , 384 U.S. 757, 770-71 (1966) (recognizing that “de lay necessary to obtain a warrant, under the circumstan ces, threatened ‘the destruction of evidence.’”) (quoting Preston v. United States , 376 U.S. 364, 367 (1964). There is no Supreme Court decision contrary to the OCCA’s holding in this case. Petitioner’s claim that the OCCA failed to quote fe deral law is also unavailing. The cases cited by the OCCA clearly ev ince that court’s recognition of the proper constitutional standards applicable t o alleged Fourth Amendment violations. We therefore conclude that petitioner has failed to establish that the-6-

state court’s decision was contrary to or involved an unreasonable application of federal law as determined by the Supreme Court. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Michael W. McConnell Circuit Judge-7-

02-7130, Thornton v. Oklahoma EBEL, Circuit Judge, dissenting
I respectfully dissent. In my judgment, the Oklaho ma Court of Criminal Appeals acted contrary to established Supreme Courtlaw and unreasonably applied the facts of this case to established Supre me Court law in finding exigent circumstances in this case. I believe that the pol ice could have obtained a search warrant based on the information they had before th e informant ever entered the house. In any event, the main evidence of exigent circumstances – that the methamphetamine was about to become consumed – was not learned until after the police had entered the house and observed the s yringe, etc. Exigent circumstances discovered as a result of an illegal search cannot be used to validate the illegal search. The other alleged exi gent circumstances – that methamphetamine is explosive and cancer forming – i s generic and would justify warrantless searches every time methamphetamine is suspected. On the facts of this case, I believe that the Oklahoma Court of Cri minal Appeals acted contrary to established Supreme Court law and unreasonably appl ied the facts to established Supreme Court law. For these reasons, I dissent.