United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3648

___________

United States of America, *

*

Appellee, *

* Appeal from the United 

v. * States District Court for 

* the District of Nebraska.

Carlos Ramirez, *

*

Appellant. *

___________

Submitted: November 15, 2011

Filed: April 26, 2012

___________

Before RILEY, Chief Judge, BEAM, and BYE, Circuit Judges.

___________

BEAM, Circuit Judge.

Carlos Ramirez appeals from the district court's denial of his motion to

suppress evidence obtained during a hotel room raid by officersin Omaha, Nebraska,

in June 2009. Because we conclude that there were no exigent circumstances

sufficient to justify the warrantless entry, we reverse. 

I. BACKGROUND

On June 29, 2009, officers conducting surveillance at the Greyhound bus

terminal in Omaha arrested Juan Perez and Juan Amaya-Armenta carrying heroin in
their shoes. Perez informed officers that he was traveling with a third male wearing

a dark shirt with a white logo, who also had heroin in his shoes. Following the

arrests, the officers tried to uncover additional evidence to locate this third man and

identified and removed several bags from under the bus. They then attempted to

locate the owners of the retrieved bags by approaching the bus passengers, but

nobody claimed ownership. A search of the abandoned bags uncovered an

identification card belonging to Hector Cruz. The investigators spoke to the bus

driver who reported that he was missing five passengers, two of whom the officers

determined were the already-arrested men. The officers were then able to obtain the

ticket information for the remaining three, identifying Luis Ibarra-Penuelas, Hector

Cruz, and Ramirez. 

From the ticket information, officerslearned that Ramirez and Ibarra-Penuelas

were traveling from San Diego to Newark, on cash, one-way tickets, purchased in

much the same fashion Perez and Amaya-Armenta–who also were traveling on cash,

one-way tickets, purchased about the same time or within minutes of each other. 

Cruz traveled in a similar fashion on a nearly identical route with a ticket purchased

with cash, and accompanied Ramirez and Ibarra-Penuelas. 

A bit of a goose chase ensued. Through combined efforts, after an officer

contacted local cab companiesto see if there was a recent pickup fromthe bus station,

the officers went to a nearby Best Western hotel to determine if the men possibly

went there. There, the officers learned that three individuals arrived at the Best

Western in a cab but did not stay. After questioning employees of the Best Western,

officerslearned that one of those individuals matched the description of the traveling

companion provided by Perez and another matched the photo of Cruz retrieved from

the abandoned bag. Further investigation revealed that the men had then taken a cab

to the Comfort Inn. At the Comfort Inn, video surveillance revealed that three

individuals, one of whom matched the description given by Perez, and another that

matched Cruz's identification card, exited a cab in front of the hotel but did not enter

-2-
the hotel. Instead, they walked to a nearby McDonald's and officers noticed from the

video that two of them walked "heavily-footed," or not normal. At the McDonald's,

the officers learned from an employee that she had provided three individuals with

a phone book and noted that the men were looking for a cab. The officers contacted

various local cab companies again and were told three individuals were picked up

from the McDonald's area and taken to the Econo Lodge. 

At the Econo Lodge, an officer learned from the desk clerk that three men

checked in about a half hour earlier and that one of the men looked like the person on

Cruz's identification card. The clerk told the police that these men were in room 220

and gave the officers a key card to the room, as well as a copy of the receipt showing

the room was rented to Cruz. Officers then went to room 220; in all, six officers

responded at the Econo Lodge, at least one of whom established perimeter

surveillance. An officer close to the door testified that the only sound he heard from

the room was, after he ultimately knocked on the door, the sound of an individual

approaching the door. There is no evidence that the men inside room 220 even knew

the police were on their trail. 

Once at room 220, an officer attempted to swipe the key card to gain entry into

the room but the card did not work. At that point, the officer blocked the peephole,

knocked on the door, and announced "housekeeping." Cruz partially opened the door

and when the officer announced his presence and flashed his badge, Cruz attempted

to push the door shut. The officers used a ram, which they had brought along

apparently anticipating a forced entry, to force the door open. The officers found

Ramirez, Ibarra-Penuelas, and Cruz inside. After conducting a cursory sweep and

securing the three men, an investigator noticed two pairs of shoes on the side of the

bed similar to those packed with heroin and worn by Perez and Amaya-Armenta. 

Ramirez and Ibarra-Penuelas denied that these shoes belonged to them, and Cruz

claimed a pair of boots located elsewhere in the room as his. After the men denied

ownership of the two pair of shoes by the bed, the investigators searched the shoes

-3-
for contraband and found heroin in each. The entire course of events from the time

officers approached Perez and Amaya-Armenta at the bus station, and the officers'

arrival at the Econo Lodge was approximately two and a half hours.

Before the district court, Ramirez argued that the search of the hotel room was

illegal and conducted without a search warrant. The magistrate judge recommended,

and the district court found, that the officers' entry was justified by an exigent

circumstance: the officers' reasonable fear that the evidence would be imminently

destroyed. Themagistrate judge's analysis (also adopted by the district court) focused

on the following facts known to the police prior to the entry: 1) one of the

investigators reasonably believed the men were attempting to elude the officers after

they witnessed the officers arrest the two men at the bus stop; 2) the men in room 220

had purchased one-way tickets to Newark, New Jersey, with cash, and were not from

Omaha; and 3) after the officers announced their presence, Cruz attempted to shut the

door to prevent the officers from entering the room. Once inside, because the men

did not claim ownership of the shoes, the court determined they were abandoned and

thus the men had no expectation of privacy in them. Accordingly, the court denied

Ramirez's motion to suppress.

II. DISCUSSION

On appeal Ramirez argues that the district court erred in finding exigent

circumstances justified the officers' warrantless entry into the hotel room. He claims

that any alleged "exigency," if it existed at all on these facts, existed only because the

officers created it–that the warrantless, unconstitutional search occurred when the

officer unsuccessfully swiped the room card and only then did the officers knock,

ultimately resulting in them breaking down the door to enter. Ramirez argues that

there are no facts supporting the officers' failure to obtain a warrant in this case. 

-4-
A. Standard

"The Fourth Amendment protects individuals against unreasonable searches

and seizures by the government." United States v. Williams, 521 F.3d 902, 905 (8th

Cir. 2008).

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.

U.S. Const. amend. IV. 

The text of the Amendment itself expressly imposes two requirements. "First,

all searches and seizures must be reasonable. Second, a warrant may not be issued

unless probable cause is properly established and the scope of the authorized search

is set out with particularity." Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). 

"'[T]he ultimate touchstone of the Fourth Amendment is "reasonableness."'" Id.

(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). So, even though a

warrant must generally be secured, see id., a non-consensual, warrantless search can

be justified by reasonable exceptions, including exigent circumstances. Williams,

521 F.3d at 908. "The [exigent circumstances] exception justifies immediate police

action without obtaining a warrant if lives are threatened, a suspect's escape is

imminent, or evidence is about to be destroyed." United States v. Ball, 90 F.3d 260,

263 (8th Cir. 1996). 

"We review the district court'sfindings of historical fact for clear error, but the

ultimate determination of whether the facts asfound constitute exigent circumstances

is reviewed de novo." United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir.

2003). "The analysis of whether [the exigent circumstance] exception to the warrant

-5-
requirement has been made out is an objective one 'focusing on what a reasonable,

experienced police officer would believe.'" Id. at 1021 (quoting In re Sealed Case 96-

3167, 153 F.3d 759, 766 (D.C. Cir. 1998)). "[T]he police bear a heavy burden when

attempting to demonstrate an urgent need that might justify warrantless searches or

arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984). When the exigency at

issue is destruction of evidence, police officers must demonstrate a sufficient basis

for an officer to believe that somebody in the residence (or hotel room, in this case)

will imminently destroy evidence. United States v. Clement, 854 F.2d 1116, 1119

(8th Cir. 1988). 

B. Exigent Circumstances

The government claims that at the moment the officers were outside of room

220, exigent circumstances justified this warrantless entry because the officers

believed, even before they swiped the key card, that the risk of destruction of

evidence was imminent. By the time the officers arrived at the hotel, they had

gathered additional, minimal information about the three men traveling from place

to place who ultimately checked into room 220: Ramirez, a man who fit the

description of the companion offered by Perez, was traveling with two others on

similar cross-country routes on tickets purchased in cash, and two of them were

walking "heavily-footed," indicating they may also be carrying heroin in their shoes. 

Yet, the government fails to meet its heavy burden to connect this knowledge with

the existence of exigent circumstances supporting the warrantless entry–that is, that

the inhabitants of room 220 would imminently destroy evidence. 

Alan Eberle, an investigator with the Nebraska State Patrol, testified at the

suppression hearing that based on the hotel-hopping actions ofthese men after, Eberle

-6-
supposed, the three observed the arrests at the bus station, he was concerned that 1

they were trying to elude officers or were going to destroy evidence or personal items

linking them to the case. Exigency, however, does not exist by mere supposition. 

Stating a belief that these men were about to destroy evidence after safely arriving at

the Econo Lodge and checking into their room, seemingly without knowledge that

they were being tracked by law enforcement, is quite speculative. And, as noted,

Investigator Eberle's subjective belief is not determinative in our analysis. "[T]his

court must look objectively at what a reasonable police officer would believe[,]"

given the objective facts at the officer's disposal at the time of entry. Williams, 521

F.3d at 908. 

The Supreme Court's very recent opinion in King is a logical starting point in

our analysis. King, 131 S. Ct. 1849. While instructive on the issue of exigency,

however, King is not dispositive of the issues before us because in King, the Court

assumed the existence of exigent circumstancesso asto focus on the issue presented.2

That the three men observed the arrests at the bus station is an assumption by 1

Investigator Eberle. Eberle assumed that the reason these three men left the bus

station was because they observed the arrest of the other two but there is no record

evidence in support of this assumption. In fact, there is no evidence regarding

whether the three men left the station before or after the officers' contact with Perez

and Amaya-Armenta. The officers only knew that Perez indicated he was traveling

with a man later determined to resemble Ramirez. While Investigator Eberle's

subjective assumption may be fair, there is insufficient objective evidence to support

his presumption. 

The Court was careful to note that it did not make any determination as to 2

whether exigent circumstances existed in King. The Kentucky Court of Appeals

found that there was a real exigency but the Kentucky Supreme Court expressed

doubt, "observing that there was 'certainly some question as to whether the sound of

persons moving [inside the apartment] was sufficient to establish that evidence was

being destroyed." King, 131 S. Ct. at 1862 (alteration in original) (quoting King v.

Commonwealth, 302 S.W.3d 649, 655 (Ky. 2010)). The Court did not weigh in on

-7-
There, the Court focused solely on articulating under what circumstances police

impermissibly create an exigency. Id. at 1862-63. In doing so, the Court reviewed 3

whether the exigent circumstances exception applies when police, by knocking on a

door of a residence and announcing their presence, cause the occupants to attempt to

destroy evidence–a most basic scenario ofthe "police-created exigency" doctrine. Id.

at 1854. The Court held that any exigency that existed was not police-created and

that the warrantless entry and search was justified. Id. at 1863. 

King's discussion of reasonable police conduct informs our analysis on the

issue whether a genuine exigency, in fact, supported the warrantless entry in the

instant case. Relevant here, the officers in King arrived at a door from which they

smelled marijuana smoke and the officers banged on the door as loud as they could

and announced their presence, saying "Police, police, police," or something to that

effect. Id. at 1854. An officer testified that as soon as they started banging on the

door, they could hear people inside moving and it sounded as though things were

being moved, leading the officers to believe that drug-related evidence was about to

be destroyed. Id. Accordingly, the officers announced that they were going to make

entry and then kicked the door down, ultimately leading to the discovery of the

evidence at issue. Id. 

the matter and arrived at its conclusion, "assum[ing] for purposes of argument that an

exigency existed." Id. at 1862.

Many courts, including the Eighth Circuit, have developed an exception to the

3

exigent circumstancesrule, the so-called "police-created exigency" doctrine. "Under

this doctrine, police may not rely on the need to prevent destruction of evidence when

that exigency was'created' or 'manufactured' by the conduct of the police." King, 131

S. Ct. at 1857 (discussing the various "police-created exigency" exception tests

developed by the lower courts and establishing that, despite the many unsound

requirements imposed by the lower courts, the essential predicate to any valid

warrantless seizure of incriminating evidence is that the officer did not violate the

Fourth Amendment in arriving at the place from which the evidence was seized). 

-8-
The Court held that the officers' conduct in King was entirely consistent with

the Fourth Amendment and in doing so, likewise discussed the privacy rights of

occupants who have no obligation whatsoever to respond. Id. at 1862. No matter that

the officers in King banged on the door and loudly announced their presence, the

Court held that "[w]hen law enforcement officers who are not armed with a warrant

knock on a door, they do no more than any private citizen might do. And whether

[the person at the door is an officer or a private person], the occupant has no

obligation to open the door or to speak." Id. The occupant, now alerted to the police

presence, may even choose to open the door and speak but need not allow the officers

to enter and may refuse to answer questions at any time. Id. But, cautioned the

Court, if the occupants choose not to stand on their constitutional rights and "instead

elect to attempt to destroy evidence," they "have only themselves to blame for the

warrantless exigent-circumstances search that may ensue." Id. 

One of the three facts relied upon by the district court in its analysis of the

exigency supporting this warrantless entry was Cruz's attempt to shut the door once

he became aware of the police presence outside room 220. This, however, occurred

after the officers unsuccessfully attempted to unconstitutionally enter room 220 with

the key card, which they admit compromised their position outside the hotel roomthat

morning. As a result of that failure, the officers blocked the peephole, knocked on 4

the door, and announced "housekeeping." Even were we to wholly ignore the failed

unconstitutional entry that set the stage, so-to-speak, and prompted (according to the

As discussed herein, there is no justification on these facts for the officers'

4

attempt to enter room 220 without a warrant by way of swiping the key card. The

officers had no warrant and there were no exigent circumstances supporting this

entry, had the officers succeeded. See Williams, 521 F.3d at 907-09 (discussing the

unconstitutional acts of an officer that began to kick on a hotel room door and attempt

entry after the occupantslammed the doorshut and engaged the dead bolt in response

to the officers' knocks, thus unequivocally invalidating the existence of any alleged

consent to search). 

-9-
officers) this knock and announce, and we make no determination regarding whether

any alleged exigency at that point was police-created, Cruz's attempt to shut the door

in response to the knock does not support the exigency here. 

Made plain in King, officers certainly have the option at all times to merely

knock on a door and seek entry. Indeed, King holds that officers might even

reasonably pound on a door and announce their presence without running afoul of the

police-created exigency rule. Id. at 1861. When they do so, "they do no more than

any private citizen might do." Id. at 1862. However, when the police knock on a

door but the occupants choose not to respond orspeak, or maybe even choose to open

the door and then close it, or when no one does anything incriminating, the officers

must bear the consequences of the method of investigation they've chosen. At that

point, if their method fails, "'the investigation will have reached a conspicuously low

point,' and the occupants 'will have the kind of warning that even the most elaborate

security system cannot provide.'" Id. (quoting United States v. Chambers, 395 F.3d

563, 577 (6th Cir. 2005) (Sutton, J., dissenting)). Accordingly, crediting these

officers with conducting a run-of-the-mill attempt to simply knock and gain entry,

Cruz was under no obligation to allow the officers to enter the premises at that point

and was likewise within his bounds in his attempt to close the door. That he did so,

without more, does not bolster the claim that it was reasonable to conclude that the

destruction of evidence was imminent. 

5

Investigator Eberle testified that the door partially came open and then after 5

an officer presented his badge and announced, "Police," "the door was being pushed

shut." If Cruz's reaction had been the verbal, visual, or aural equivalent of, "The

police are here, destroy the drugs," our analysis may be different. See United States

v. Chambers, 395 F.3d 563, 577 (6th Cir. 2005) (Sutton, J., dissenting) (discussing

a situation where a woman came to a glass door to answer an officer's knock,

immediately retreated, calling out that there were police at the door, which prompted

sounds of scurrying inside the abode). We do not surmise as to what compilation of

facts might suffice to establish exigency when police are at a door; we only note that

it is not out of the realm of possibilities that a resident's reaction to the knock and

-10-
Looking then at the remaining two bases for the district court's analysis, the

circumstances relied upon by the district court are not exigent. "The urgency that

would justify allowing the police officers, rather than a neutral judicial officer, to

draw the reasonable inferences supporting this entry is not present in these facts."

United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir. 1990). At the time these

officers attempted to enter room 220, they reasonably believed that two of the

occupants of room 220 possessed heroin in their shoes, and the officers believed that

the men had, possibly, attempted to elude the police either to flee themselves, which

seems more tenable, or, more tenuously, to destroy the evidence at some point. That

6

the officers tracked the men also does not impact our analysis. There is no evidence

supporting the inference that these men knew the police were tracking them at all,

which might lend credence to that line of reasoning as it relates to the imminent

destruction of evidence. Also, knowledge that drugs were in the room does not

suffice to conclude that destruction was imminent. 

Prior to using the key card, the officers heard no sounds at all in room 220–no

dead bolt lock being engaged, no toilet flushing or a shower or faucet running, and

no shuffling noises or verbal threats emanating from the room; nor did the officers

have any information that an occupant of room 220 had attempted to escape through

a window, nor any indication that these individuals were armed or dangerous. In fact,

the officer closest to the door heard only the sound of someone approaching after he

had knocked. Accordingly, at the time these officers sought to gain entry by swiping

the key card, they had no indication whatsoever that there was any activity at all in

announce method might indeed inform the exigent circumstance analysis. 

That the men had in no way attempted to destroy the evidence during the two 6

hours or so en route to the Econo Lodge lends itself more reasonably to the

conclusion that these men were attempting to flee themselves (a basis for exigency

not relied upon by the government on appeal) or that they were attempting to

relocate–not destroy–the heroin in their possession. 

-11-
the hotel room, let alone any activity that might lead them to believe that the

occupants inside might imminently destroy evidence. Especially given the fact that

the occupants/suspects checked in thirty minutes prior, and there was nothing to lead

the officersto believe that they had since left, the silence in the room nearly solidifies

the inference that nothing was going on in room 220. But see United States v.

Granados, 596 F.3d 970, 973-74 (8th Cir. 2010) (upholding warrantless entry into a

hotel room when officers were aware occupant of room accompanied a known drug

supplier that had just been arrested in the parking lot, officers reasonably believed

weapons were in the room and that the occupant had been surveilling the parking lot

activity, officers smelled marijuana in the hallway just outside the room, and they

were concerned for the safety of an informant's family); United States v.

Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005) (warrantless entry to hotel room

justified by risk that evidence would be destroyed when hotel management

complained of suspicious drug activity in the room, occupant opened curtains and

saw police and then officers heard sounds of pots and pans slamming, dishes

breaking, water flowing, and garbage disposal grinding); United States v. MarinCifuentes, 866 F.2d 988, 991-92 (8th Cir. 1989) (exigent circumstances supported

warrantless search given police surveillance of meetings between dealers prior to

drug delivery, identification of a "load" vehicle, surveillance of phone calls to hotel

room occupant from known drug dealers, and the arrest of two cohorts, which would

likely tip off the hotel occupant who was known to be "surveillance conscious"). 

On appeal, the government almost wholly relies on a line of cases involving

situations where this court has found exigency based upon facts where the failure of

one party's return might tip off an occupant that a deal had gone "sour" or law

enforcement wasinvolved,thus prompting the imminent destruction of evidence. For

example, the government cites United States v. Kulcsar, 586 F.2d 1283 (8th Cir.

1978), where officers arrived at a known drug supplier's home after arresting a drug

dealer en route to the home, and saw a man fitting the description of the supplier look

out of a second floor window and then quickly move out of view. Id. at 1285.

-12-
Accordingly, the officers believed the supplier wasinside and knew oftheir presence,

and thus entered the home without a warrant and arrested him. Id. This court

condoned the entry, noting that if the officers waited the several hours the record

indicated it would have taken to obtain a warrant, the drug courier arrested en route

to that supplier's house would not have returned, and the supplier would have been

on notice that something was up, which would have likely precipitated the removal

or destruction of the narcotics therein. Id. at 1287. The government offers no facts

of the sort in this case. 

In each ofthe other cases cited by the government, facts in the record supported

the theory of exigency advanced by the government. In each instance, the arrest of

a single suspect outside of the location searched likely would have alerted a second

suspect, who had the evidence and was within the location at issue, that something

was awry. In each case, it was thus reasonable for the officers to conclude that

discovery of pursuit was imminent, resulting in destruction of evidence. United

States v. Wentz, 686 F.2d 653 (8th Cir. 1982) (condoning a warrantless entry into a

home where a prior drug transaction occurred because the occupants would grow

suspicious when one of the dealers failed to return, having been arrested while away

from the house but on his way back); United States v. Palumbo, 735 F.2d 1095 (8th

Cir. 1984) (same, concluding that when one individual failed to return to a hotel room

as expected, the undercover operation would be revealed, thus supporting the

exigency of the circumstances).

Based upon a review and compilation of the precedent on which the

government relies, the crux of its argument on appeal is that because the two men

who were arrested at the bus terminal were allegedly accompanying a third man who

was with another two in the hotel room, the three men in room 220 would become

suspicious somehow, prompting them to imminently destroy the evidence in their

possession. Indeed, the government argued to the district court that the "hallmark"

of this case is the separation of the men arrested at the bus stop and the man alleged

-13-
to be traveling with them. The government states that "[t]he fact co-conspirators had

been previously arrested justified the exigency." Yet, the facts of the instant case do

not comport with the precedent upon which the government relies. This record is

devoid of evidence that these five men were scheduled to rendezvous at some

point–i.e., that these three men were "waiting" for the other two. Nor was there any

other evidence that would lead a reasonable officer to conclude that the absence of,

or detainment of, the two men arrested at the bus stop would somehow alert or "tip

off" these three men that something was afoot, or that law enforcement was close. 

The evidence supports the proposition that the officers tracked these men

because the officers believed the men were part of the conspiracy at the bus station

and possessed additional contraband. But following leads in a narcoticsinvestigation

is not enough. The facts relied upon by the district court–the suspects alleged

"elusion," the suspects' ticket information, and Cruz's attempt to close the door–do

not establish exigent circumstances. Of course, officers need not always get a warrant

even if they have probable cause to do so. King, 131 S. Ct. at 1860-61. But, to effect

a warrantless entry in violation of a person's rights under the Fourth Amendment, a

reasonable exception must apply. Id. at 1856. Here, viewed objectively, the

government fails to establish that it was reasonable for the officers to conclude that

destruction of evidence was imminent, thereby establishing exigent circumstances

warranting the forced entry into room 220. 

7

Because we find no exigent circumstances here, we need not determinewhether

the officers in this case "created" any exigency, which itself would have necessarily

precluded the warrantless entry. Id. at 1862. 

Assuming the government intended to also advance the suspects' imminent

7

escape as a justification for the warrantless entry into room 220, which is not readily

apparent from the government's brief or oral argument, any evidence in support of

that assertion is scant and our analysis regarding the destruction of evidence equally

applies to dispose of that claim.

-14-
The evidence used to convict Ramirez was gained after the illegal entry into

room 220. The district court erred in not suppressing this evidence. Accordingly, we

reverse Ramirez's conviction on count two because the evidence used to convict him

was the fruit of a warrantless entry without exigent circumstances. 

III. CONCLUSION

We reverse and remand for further proceedings consistent with this opinion.

RILEY, Chief Judge, dissenting.

I respectfully dissent because a reasonable police officer would believe exigent

circumstancesjustified entering the hotel roomto prevent the destruction of evidence.

The exigent circumstances exception allows police officersto enter a residence

without a warrant in limited circumstances, including to prevent the destruction or

removal of evidence, so long asthe police have probable cause to search. See United

States v. Cisneros-Gutierrez, 598 F.3d 997, 1004 (8th Cir. 2010). “To evaluate

‘whether a warrantless entry was justified by exigent circumstances, we consider the

circumstances that confronted police at the time of the entry.’” Id. (quoting United

States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005)). “We look objectively

at whether a reasonable, experienced police officer would believe evidence was in

danger of removal or destruction.” Id. While such a danger of removal or destruction

must be likely to occur in order to justify the entry, the police “need not . . . wait until

the evidence is in the process of being destroyed before entering.” United States v.

Clement, 854 F.2d 1116, 1119 (8th Cir. 1988).

Objectively viewing the totality of the circumstancesin this case, a reasonable,

experienced police officer would believe the defendants were likely to destroy the

heroin when Cruz attempted to shut the hotel room door after the officers knocked

-15-
and identified themselves. Consider what the officers knew at that moment: (1) two

men were arrested that morning at the bus station with two kilograms of heroin

hidden in their shoes; (2) one arrestee disclosed that a fellow passenger (later

identified as Ramirez) also had heroin in his shoes, and that arrestee gave the police

a description of the other passenger; (3) three men, including Ramirez, having

purchased one-way, cross-country bus tickets, abandoned their California to New

Jersey bus trip and left the bus station at approximately the same time as the arrest;

(4) at least one of the three men, Cruz, also abandoned his suitcase on the bus; (5) the

three men took a cab to a Best Western hotel, another cab to a Comfort Inn, walked

to a McDonald’s restaurant, and finally took a different cab to an Econo Lodge,

where they checked in approximately thirty minutes before the police arrived; and (6)

in a surveillance video at the Comfort Inn, two of the men appeared to still have the

heroin in their shoes because they walked heavy-footed or abnormally from the

Comfort Inn to the McDonald’s restaurant. 

In light of this evidence, the officers’ belief that the men might try to destroy

or hide the heroin or other evidence upon reaching the privacy of a hotel room was

objectively justified. Faced with this belief, the officers had to choose between

waiting two to four hours for a search warrant or trying to establish contact with the

three men through some other means. It is unnecessary to decide whether this 8

evidence was enough to justify a warrantless keycard entry, as the government argues,

because the police officers did not succeed in their attempted entry with the keycard. 

The officers were in no position to obtain a search warrant until the officers 8

located where the defendants were staying. See United States v. Curry, 911 F.2d 72,

76-77 (8th Cir. 1990) (“‘A search warrant must contain a description of the place to

be searched’ in order to comply with the fourth amendment’s particularity

requirement.” (quoting United States v. Alberts, 721 F.2d 636, 639 (8th Cir. 1983)).

The two to four hours necessary to obtain a search warrant for the defendants’ hotel

roomcould not begin to run until the defendants were discovered and identified at the

Econo Lodge. 

-16-
Instead, the officers thereafter tried to establish contact with the defendants by

knocking on the door and announcing their presence when Cruz opened the door,

which the officers certainly could do with or without exigent circumstances. Cruz’s

response of opening the hotel room door, seeing the police and then pushing the door

shut(1) objectively supported the officers’ reasonable belief the defendants’ nextstep

would be to destroy or dispose of the heroin, and (2) made immediate action

necessary to prevent the destruction of evidence.

The panel majority determines there were no exigent circumstances, see ante

at 14, arriving at this conclusion by minimizing the significance of the defendants’

conduct before checking into their room. For example, the panel majority dismisses

as a mere assumption Investigator Alan Eberle’s belief the three men left the bus

station because they observed the arrests of their co-conspirators, concluding “there

is insufficient objective evidence to support his presumption.” Id. at 6-7 & n.1. I

disagree. Why would three men traveling from California to New Jersey with paid

bus tickets—one reportedlycarrying heroin is his oversized shoes—abruptly abandon

before dawn their chosen cross-country mode oftransportation, and also some oftheir

luggage at the Omaha bus station, and use three cabs to visit three hotels located in

different areas of the city? Considering the co-conspirators’ arrests occurred at the

bus station, close in time to when the defendants disappeared, it was reasonable, and

not speculative, for the police officers to deduce the three men observed their coconspirators’ encounter with police and decided to flee the scene. 

I also disagree with the panel majority’s assertion “[t]here is no evidence

supporting the inference that these men knew the police were tracking them at all.” 

Id. at 11. Even if one ignores the logical conclusion the men fled the station to avoid

the fate of their confederates, the defendants obviously knew the police officers

successfully tracked them by the time Cruz opened the hotel door. Even before this

point, the defendants’ clandestine efforts indicate they were trying to evade law

enforcement. Three hotel visits by three different cabs before dawn is suspicious

-17-
behavior for even the most discerning traveler. This conduct supports at least a

reasonable suspicion the defendants feared the police would try to find them.

Having removed these circumstances from consideration, the panel majority

reasons Cruz’s act of closing the door—described by Investigator Stephen

Rasgorshek as an “attempt[] to slam the door shut”—“does not support the exigency

here,” id. at 10. While the panel majority is correct, “Cruz was under no obligation

to allow the officers to enter the premises . . . and was . . . within his bounds in his

attempt to close the door,” id., the propriety of Cruz’s act is not dispositive of the

issue at hand. 

Cruz’s act of shutting the door did not occur in isolation, but was the

culmination of a more than a two-hour “goose chase,” id. at 2, during which the

police obtained information leading them to believe there was a risk the defendants

would rid themselves of the heroin. Viewed in context, Cruz’s act of closing the door

on the police transformed this risk into a near certainty. By itself, closing a door on

police officers would not provide a reasonable belief exigent circumstances exist. 

But it is entirely proper for the officersto consider the door closing within the totality

of the circumstances. See, e.g., United States v. de Soto, 885 F.2d 354, 368 (7th Cir.

1989) (finding exigent circumstances and holding the threat of destruction of

evidence justified a warrantless entry of an apartment when the occupant responded

to a police officer knock and identification by “attempt[ing] to slam the door in [the

police officer’s] face”); cf. Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983) (“In

making a determination of probable cause the relevant inquiry is not whether

particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches

to particular types of noncriminal acts.”). When added to the existing suspicious

circumstances, Cruz’s closing the door additionally justifies the officers’ entry. 

Because exigent circumstances existed when Cruz shut the hotel door, the

question becomes whether the police officers impermissibly created these exigent

-18-
circumstances, in which case they cannot justify the warrantless search. See United

States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990). The Supreme Court has

instructed “the exigent circumstances rule justifies a warrantless search when the

conduct of the police preceding the exigency isreasonable” within the meaning of the

Fourth Amendment. Kentucky v. King, 563 U.S. ___, ___, 131 S. Ct. 1849, 1858

(2011). “Where . . . the police did not create the exigency by engaging or threatening

to engage in conduct that violates the Fourth Amendment, warrantless entry to

prevent the destruction of evidence is reasonable and thus allowed.” Id.

Here the police officers did not violate, nor threaten to violate, the Fourth

Amendment before knocking on the door. The police officers’ attempt to enter the

room with a keycard obtained from the desk clerk was, at worst, an attempted Fourth

Amendment violation. The officers’ failed entry attempt is immaterial because it did

not create the exigency. The record indicates the officers did not hear any movement

inside the hotel room after the officers’ failed keycard entry attempt. And the fact

Cruz answered the door shows the botched keycard entry had no effect on events

inside the room. 

In light of King, the police officers’ subjective intent has no bearing upon our

decision. See id. at ___, 131 S. Ct. at 1859 (rejecting a test that asked whether police

officers created exigent circumstances in a bad faith attempt to avoid having to get

a warrant because the subjective nature of such a test is inconsistent with typical

Fourth Amendment jurisprudence). Because the officers did not create the exigency

by committing or threatening to commit a Fourth Amendment violation, the exigentcircumstances exception should apply in this case. 

A highly experienced magistrate judge and district judge, as well asthis circuit

judge, did not perceive a constitutional violation here. I wonder how police officers

on the firing line can distinguish the fine legal lines we draw here today. I would

-19-
affirm the district court’s denial of Ramirez’s motion to suppress the heroin found in

the hotel room.

______________________________

-20-