1 Senior District Judge of the Western District of Louisiana

sitting by designation.

 

2 Presently, Riley has completed his 10 month incarceration

sentence and is now on 3 years supervised release.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-3697

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES N. RILEY,

Defendant-Appellant,

______________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_______________________

July 29, 1992

Before HIGGINBOTHAM, DUHE, Circuit Judges, and HUNTER1, District

Judge 

EDWIN F. HUNTER, JR., District Judge:

Defendant was indicted on one count of possession of cocaine,

in violation of Title 21, United States Code, § 844(a), and one

count of possession of a firearm by a convicted felon, in violation

of Title 18, United States Code, § 922(g)(1). He was found "not

guilty" as to Count I (possession of cocaine) and "guilty" as to

Count II (possession of a firearm by a convicted felon).2 He
 

3 At oral argument, the government stated that the officers

listened in on the conversation when informant made the call to the

house on Curran Boulevard. The officers heard the informant and

someone named Terry discuss an imminent drug transaction. It is

noteworthy that the record does not support such particulars. The

record does support that the officers knew the deal had been set up

from that residence.

2

challenges the district court's denial of his motion to suppress

the evidence obtained by the warrantless entry of his residence and

the subsequent search. Finding no error, we affirm.

I.

FACTS

The police officers were aware that a drug deal had been set

for Sunday night at 9:00 o'clock p.m. They knew that deal had been

arranged from a house at 8233 Curran Boulevard in New Orleans.3

The house was placed under surveillance.

After twenty to thirty minutes, officers observed Terry Moore

leave the house. He was carrying a white bag. Two officers

previously assigned to watch the house followed as he drove to the

LaQuinta Motor Inn where the drug deal was to be consummated.

Moore was arrested on a drug charge. The white bag contained

cocaine. He informed the officers that there was a large sum of

money, a gun, and another person in the house at 8233 Curran

Boulevard. Defendant was the lessee of the residence at that site.

Armed with the fact that Moore possessed cocaine, the gun and

money information furnished by Moore, and the cellular phone which

Moore possessed, the commanding officer dispatched anywhere from

six to nine police officers to 8233 Curran Boulevard to "secure the

residence." The officers forced opened the front door. Appellant
 

4 The form reads in pertinent part:

". . . PERMISSION FOR SEARCH AND SEIZURE

. . . . IN ORDER TO COOPERATE WITH . . . .

I AM GIVING THIS WRITTEN PERMISSION To these police

officers freely and voluntarily without threats or

promises having been made to me and after having been

informed by these officers that I have the right to

refuse to permit this search and seizure. It is my

desire to assist them the extra time it would take to

obtain a search warrant, and for this reason I have given

my consent.

/s/ Charles N. Riley"

3

was in the bedroom. A protective sweep of the house was conducted.

Riley was detained pending investigation and advised of his Miranda

rights.

The officers prepared to procure a search warrant. Riley

informed that a search warrant was not necessary; that there was

nothing inside the residence, and that the officers were free to

search. The officers assured his voluntary consent to the

warrantless search of his house by having Riley sign a "Permission

for Search and Seizure" form.4 This form was witnessed by two NOPD

officers. After consent was given, the officers found, in Riley's

residence, $14,000 and a gun hidden under a waterbed mattress, and

a small amount of cocaine in a bathrobe.

Resolution of defendant's motion to suppress requires us to

address two separate issues: first, whether the entry and internal

securing of the premises constituted an impermissible seizure;

second, whether the subsequent written consent to search was

voluntary.
4

II.

The Warrantless Entry

Defendant insists that the officers' initial entry into the

residence without a warrant was violative of his Fourth Amendment

rights, and that, any evidence discovered during the subsequent

search should have been suppressed as "fruit" of this illegal

entry. Riley also argues that the Permission for Search and

Seizure was not freely and voluntarily given. The district judge

concluded that there was probable cause to secure the home and

valid consent to conduct the search.

In reviewing the ruling on the motion to suppress, this Court

must accept the district court's factual findings unless they are

clearly erroneous or are influenced by an incorrect view of the

law. United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th

Cir.1990), cert. denied, U.S. , 110 S.Ct. 1957 (1990);

See also United States v. Reed, 882 F.2d 147, 149 (5th

Cir.1989)(Evidence viewed in light most favorable to the party

prevailing below). 

A warrantless entry into a home to effectuate a search or

seizure is presumptively unreasonable. See Payton v. New York, 445

U.S. 573, 586-87, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). The

"physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed." United States v.

United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125,

2134, 32 L.Ed.2d 752 (1972); U. S. v. Capote-Capote, 946 F.2d 1100

(5th Cir.1991). We recognize that individual interests outrank
 

5 Arguably, the wiser course might have been to secure the

premises from the outside while waiting for the warrant. But, the

entry made here does not require a different result under the

Fourth Amendment. The "heightened protection we accorded privacy

interests is simply not implicated where a seizure of premises, not

a search, is at issue." Sequra v. United States, 468 U.S. 796, 104

S.Ct. 3380, 3388, 82 L.Ed.2d 599 (1984).

5

government convenience in Fourth Amendment balancing. But, we

hasten to add that exigent circumstances may justify a warrantless

entry. See Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 1690,

109 L.Ed.2d 85 (1990). Because a warrantless search is presumed to

be unreasonable, the Government has the burden of proving that the

warrantless search was conducted pursuant to an exception. Coolidge

v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564

(1971). 

Here, the police had abundant probable cause to believe that

there was a criminal drug operation being carried out from Riley's

house. The only issue is whether exigent circumstances existed to

justify the warrantless entry.5 Courts have catalogued numerous

situations in which exigent circumstances exist. But the final

answer must be applied carefully to the individual factual

scenario. Relevant factors for a determination of exigent

circumstances include: (1) the degree of urgency involved and

amount of time necessary to obtain a warrant; (2) a reasonable

belief that contraband is about to be removed; (3) the possibility

of danger to police officers guarding the site of contraband while

a search warrant is sought; (4) information indicating the

contraband's possessors know police are on their trail; and (5)

the ready destructibility of the contraband. See United States v.
 

6 The need to invoke the exigent circumstances exception is

particularly compelling in narcotic cases because of the ease, with

which they may be destroyed.

6

Vasquez, 953 F.2d 176, 180 (5th Cir.1992); United States v. CapoteCapote, 946 F.2d 1100, 1103 (5th Cir.1991)(listing examples of

exigent circumstances that may justify warrantless entry); United

States v. Thompson, 700 F.2d 944, 948 (5th Cir.1983), affirmed on

appeal after remand, 720 F.2d 385 (5th Cir.1983); United States v.

Reed, 935 F.2d 641, 642 (4th Cir.1991).6

Officers were aware of the impending deal which Moore

finalized. They knew that he had set up the "deal" from 8233

Curran Boulevard. They observed Moore leave 8233 Curran Boulevard.

He was carrying a plastic bag; he was arrested. Moore advised the

officers that there was a large sum of money, a handgun and another

individual at the residence he had just left. Sergeant Cimino,

with 13 years experience with the NOPD narcotics, concluded that

there was a good probability that the fruits, instrumentalities and

evidence of a narcotic trafficking crime would be found in the

house. He realized that Moore possessed a cellular phone. He

believed that, since the house had not been secured, the appellant

could arm himself and/or destroy or remove contraband in the time

that it would take to procure a warrant. It was a Sunday night.

The warrant would not be fast coming. 

The presence of a cellular phone indicated to the officers

that Moore was going to report back and failure to call back or

return would alert the other occupant that something had gone

wrong. See United States v. Espinoza-Seanez, 862 F.2d 526, 538
7

(5th Cir.1988)(Court noted that jury could have decided that the

presence of cellular phone are the "tools of the trade" of a drug

dealer); See United States v. Wulferdinger, 782 F.2d 1473, 1476

(9th Cir.1986)(Fact that one's failure to return might cause those

inside to dispose of any evidence can be considered when

determining exigent circumstances). Sergeant Cimino was influenced

by the fact that Moore had cocaine in his possession. Surely he

was justified in his belief that there was a great probability that

drugs would be found. The need to preserve evidence that may be

lost or destroyed if a search is delayed is and has long been a

consideration in determining the existence of exigent circumstance.

United States v. Johnson, 802 F.2d 1459, 1462 (D.C. Cir.1986);

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d

908 (1966)(The destruction of evidence presents the requisite

exigency). Courts should consider "[t]he appearance of the scene

of the search in the circumstances presented as it would appear to

reasonable and prudent men standing in the shoes of the officers."

United States v. Wysocki, 457 F.2d 1155, 1160 (5th Cir.), cert.

denied 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972); United

States v. Socey, 846 F.2d 1439, 1446 (D.C. Cir.), cert. denied, 488

U.S. 858, 109 S.Ct. 152, 102 L.Ed.2d 123 (1988). 

The gun is a factor. See United States v. Reed, 935 F.2d 641

(4th Cir.1991)(lists an array of cases which substantiate that

presence of a gun can justify warrantless entry). Sergeant Cimino

feared that in the time incurred to obtain a warrant the occupant

could arm himself with the gun. A man with a gun could endanger
8

the police in setting up a perimeter surveillance.

Two other factors that are noteworthy. The drug deal was on

Terry Moore's terms. Prior to Sunday, the investigation did not

entail the house at 8233 Curran Boulevard. It had only been under

surveillance for twenty to thirty minutes when Moore exited the

residence. The officers left the house unattended. Time was of

the essence. The mandible delay incident to obtaining a warrant

sometimes must yield to the need for immediate action. They had no

idea of what might develop. The officers certainly had a

reasonable belief that: 1) a person occupied the private dwelling

in question; 2) the occupant would become aware of the

investigation because of the implications of the cellular phone;

3) the occupant could thus arm himself with the gun; and 4) drugs

could be found and/or destroyed. This was all weighed against the

time delay necessitated to procure a warrant. Such delay in

securing a warrant in a large metropolitan center on a Sunday night

unfortunately is not uncommon.

We are not prepared to say under the limited circumstances of

this case that the seizure was unreasonable under the Fourth

Amendment.

III.

Was the Consent to Search Voluntarily

Appellant insists that the consent to search was not given

freely and voluntarily. Counsel suggests that it was only an

acquiescence to an inevitable situation by virtue of the
 

7 Appellant makes two arguments with respect to the consent

issue. The aforementioned and also that the illegality of the

initial entry was not so attenuated to dissipate the taint. We

need not address this issue because of our finding that the initial

entry was not a violation of his constitutional rights.

9

overwhelming presence of the police in appellant's home.7 

The voluntariness of consent must be determined by an

examination of the totality of the circumstances. United States v.

Davis, 749 F.2d 292, 294 (5th Cir.1985). "Where the validity of a

search rests on consent, the State has the burden of proving that

the necessary consent was obtained and that it was freely and

voluntarily given, a burden that is not satisfied by showing a mere

submission to a claim of lawful authority." Florida v. Royer, 103

S.Ct. 1319, 1324 (1983); See United States v. Lopez, 911 F.2d

1006, 1010 (5th Cir.1990), citing to Schneckloth v. Bustamonte, 412

U.S. 218, 248, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973)(It must

be shown that the consent was not given "simply in acquiescence to

a claim of lawful authority"). Proof of a voluntary and effective

consent must be proven by a preponderance of the evidence. United

States v. Hurtado, 905 F.2d 74, 75 (5th Cir.1990). There are many

factors to be considered. This Court has previously announced

certain ones: 

(1) the voluntariness of the defendant's custodial

status; (2) the presence of coercive police procedures;

(3) the extent and level of the defendant's cooperation;

(4) the defendant's awareness of his right to refuse

consent; (5) the defendant's education and intelligence,

and (6) the defendant's belief that no incriminating

evidence will be found. United States v. Galberth, 846

F.2d 983, 987 (5th Cir.1988), cert. denied, 488 U.S. 865.

The record reveals that an officer informed Riley that the
 

8 The district court concluded that Appellant signed the form

and that it had been signed before the search was conducted and

that he did so voluntarily. The district court was entitled to make

these conclusions based on his perception as to witness

credibility. Absent clear error, we accept the district court's

findings.

10

police were going to seek a search warrant. The record reveals

that Riley voluntarily consented to the search. The consent was

the intervening factor which detoured the procurement of a warrant.

The officers advised Riley of his Miranda rights. The consent was

given in surroundings familiar to Riley, as opposed to the police

station house. Riley demonstrated at the suppression hearing that

he had sufficient intelligence to read and understand the search

and seizure form.8

Conclusion

We are persuaded that sufficient exigency existed to justify

the warrantless entry by the police, and that the subsequent

consent to search was valid.

The conviction and sentence are affirmed.