### The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District 1 

### of Missouri. *The panel unanimously finds this case is suitable for decision without oral argument. Fed.R.App.P.34(a). **The Honorable James M. Burns, Senior United States District Judge for the District of Oregon, sitting by designation. ______________ No. 95-3445 EM

______________ United States of America, * * Plaintiff/Appellee, * * v. * Appeal from the United State s District Court * for the Eastern District o f Missouri. Jesse Ball, * * Defendant/Appellant. *

___________ Submitted: April 9, 1996* Filed: July 17, 1996

___________ Before BEAM and MURPHY, Circuit Judges and BURNS**, District Judge.
BURNS, Senior District Judge. Appellant Jesse Ball was convicted in the district court of six count s 1 chargi ng violations of narcotics laws and attendant firearms crimes. H e app eals his convictions on three counts. We affirm in part, reverse i n part, and remand for further proceedings. I. PROCEEDINGS BELOW The grand jury returned a six count indictment charging appe llant with drug trafficking and firearms crimes. Appellant pleaded not guilty and a jury convicted him on all six counts in a trial

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that ended on June 21, 1995. Only three of these convictions are implic ated in this appeal. Appellant challenges his convictions on Counts 2, 5, and 6. Count 2 cha rgedappellant with using a firearm in relation to a drug traffickin g crime on March 25, 1994. Counts 5 and 6 aros e from events that occurred on July9, 1992. Count 5 charged appellant with possession of crack cocaine with intent to dis tribute and Count 6 charged him with carrying or using a firearm in relation to that crime. On Septem ber 13, 1995, the district court imposed a sentence o f imprisonment for 481 months. With respect to the challenged convictions, this sen tence included 121 months for Count 5 followed by a consecutiv e senten ce of 10 years on the Count 2 firearm charge followed by anothe r
con secutive sentence of 20 years on the Count 6 firearm charge. I n addition, appellant was charged a special assessment of $300 whic h represented $50 for each count of conviction. After appellant was tried and sentenced in this case, the Suprem e Court issued its opinion in Bailey v. United States , ___ U.S. ___, 115 S .Ct. 501 (1995). The government now concedes that the evidence at trial was not sufficient, under the requirements of Bailey, to support the firearm s convictions on Cou nts 2 and 6. Accordingly, those convictions are reversed and the case must be remanded to the district court for resentencing. The remaining issue in this appea l concerns appellant's conviction on Count 5 for possession of crack cocaine with intent to distribute on July 9, 1992. Mr. Ball appeals the district court's order denying his motions to suppress eviden ce seized during the warrantless entry into his house on July 9, 1992 and t o suppress statements he made to police officers at that time

. The district court determined that the warrantless entry int o appellant's residence was justified by exigent circumstances and that th e seizure of evidence found in plain view was proper. II. STANDARD OF REVIEW We have traditionally employed the "clearly erroneous" standard t o review the district court's denial of a motion to suppress evidence obta ined bya warran tless search. U.S. v. Johnson , 28 F.3d 1487, 1494 (8th Cir

. 1994), cert. denied , ___U.S.___, 116 S.Ct. 76 8 (1995); U.S. v. Clement, 854 F.2d 1116, 1118 (8th Cir. 1988). Af ter submission of this case, the Supreme Court handed down it s opi nionin Ornelas v. United States ,___ U.S.___, 116 S.Ct. 1657 (1996)

.

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Orne las instructs us to review such determinations under a two stag e standard. The first part of the analysis involves only a

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determination of the historical facts leadingup to the warrantless search. The second part of the analysis requires a decision whether these histor ical facts, when viewedfrom the standpoint of an objectively reasonable police officer, support the ultimate conclusion reached by the district court, i.e. that probable cause existed or that exigent circumstances were present

. Ornelas , 116 S.Ct. at 1661-62. Ornelas instructs that the second part of the analysis, the ultimate conclusions reached by the district court, must be reviewed de novo. 116 S.Ct. at 1663. Before Ornelas , we treated a district court's determination tha t exi gent circumstances were present as a question of fact, to be reverse d onlyfor clear error. U. S. v. Clement , 854 F.2d at 1118; United States v. Knobeloch , 746 F.2d 1366, 1366-67 (8th Cir. 1984), cert. denied , 470 U.S. 1006 (1985); United States v. Wentz , 686 F.2d653, 657 (8th Cir. 1982). We gave par ticular deference to the fact finder who had the opportunity t o obs erve the demeanor and credibility of the witnesses. United States v

. Chunn , 11 F.3d 107, 109 (8th Cir. 1993); United States v. Wallraff , 705 F.2d 980, 987 (8th Cir. 1983). Under the two stage standard described in Ornelas , we still "revie w findings of historical fact only for clear error" and "give due weight to inferenc es drawn from those facts by resident judges and local la w enforce ment officers." Ornelas , 116 S.Ct. at 1663. Only the ultimat e conclusion that the historical facts amountedto "exigent circumstances" is subject to de novo review. Id

. III. BACKGROUND On May 4, 1995, Magistrate Judge Medler conducted an evidentiar y hearing on appella nt's motion to suppress. At the hearing, the Magistrate Jud ge heard testimony from and observed the demeanor and credibility o f Detective Gelhot and Officer King. The Magistrate Judge made findings of historical fact that were adopted by the district court and formed the b asis upon which the motion to suppress was denied. On Jul y 8, 1992, Detective Gelhot of the St. Louis Police Department met with a confidential informant. The informant described drug traffic king activities at a certain address in St. Louis. He gave physical descript ions of the building at that address and of the distributor who lived and car ried on his drug business there. The info rmant said that the distributor typically sat on the fron t porch waiting for customers. Customers would meet him on the porch and give

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money, jewelry, or firearms in

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exc hange for crack cocaine. The distributor then would enter the house , leaving the customer on the porch. When the distributor returned to th e po rch, he would give the customer crack cocaine and the customer woul d leave. The distributor would remain on the porch waiting for othe r customers. The informant told Gelhot that th e distributor kept a weapon on or near his person or close by inside the residence. Later tha t day, Gelhot drove by the address given by the informan t andobserved a house fitting the description given by the informant. O n July 9, 1992, Gelh ot returned to the residence wearing plain clothes in an unmarked car with his partners, Detectives Murphy and Strehl. He observed a male matching the description given by the informant seated on the porch. Anothe r male was standing on the porch and appeared to be displaying a chrome plated long barreled revolver to the person who was seated. When the officers exited their vehicle, the person who was standin g on the porch holdi ng the hand gun fled into the residence. Strehl went to the porch where he remained with the seated individual. Gelhot and Murphy pursuedthe other individual into the residence where they observed crack cocain e, narcotics paraphernalia and firearms in plain view. Gelhot an d Murphy did not find the fleeing individual with the chrome plated firearm. The seated individual on the porch was later identified as appellant. Appellan t was arrested and the items of evidence observed in plai n view were seized. Appellant gave inculpatory statements to the officers. Thes e findings of historical fact are amply supported in th e record and we find no clear error. IV. DISCUSSION Police officers may not enter or search a home without a warrant un less justified by exige nt circumstances. See Payton v. New York , 445 U.S. 573, 589 (1980) (warrantless entry to make a felony arrest requires exigen t cir cumstances). The exigent circumstances exception to the warran t requir ement is narrowly drawn. U.S. v. Clement , 854 F.2d at 1119. Th e exception justifie s immediate police action without obtaining a warrant if lives are threaten ed, a suspect's escape is imminent, or evidence is about to be dest royed. Michigan v. Tyler , 436 U.S. 499, 509 (1978); Warden v

. Hay den , 387 U.S. 294, 298-99 (1967); Ker v. California , 374 U.S. 23, 4 2 (1963), U.S. v. Clement , 854 F.2d at 1119.

### 7 The district court agreed with th e conclusion of the Magistrate Judge that ex igent circumstances were present because the officers reasonabl y inferredthat the suspect who fled into the house might escape or destroy evidenc e in the house. Under Ornelas , we review the district court' s conclusion de novo. It is abundantly clear that an ob jectively reasonable police officer, knowing the information known by Gelhot and observing the two men on th e porc hof appellant's residence, would conclude that the two men wer e conducting an illegal narcotics transaction. At that point, both men would
re asonablybe considered criminal suspects. An objectively reasonabl e police officer would infer that the suspect who ran into the house wa s attempting to esca pe. In fact, we now know that the inference was not only reasonable, but also correct, as the suspect did escape. It would be reasonable for such an officer to conclude that th e escaping suspect m ight try to destroy or remove evidence in the house. It wouldalso be reasonable for such an officer to believe that the presence of an armed suspect inside the house presente d a threat to the lives of the officers outside. For all these reasons, the actions of the fleeing sus pect required immediate police action without delaying to obtain a warrant. Appellant's arguments have no merit and require little discussion

. First, h e contends that the police were not justified in believing tha t evidence might be destroyed. He argues that the fleeing suspect's onl y motivation was to escape and that he would no t have jeopardized his retreat bystop ping to destroy evidence. This position relies too heavily o n hindsight. We must view the facts from the standpoint of the officers at the scene. From that standpoint, it was reasonable to believe that th e fleeing suspect, if not pursued by the officers, might stop to destroy or remove evidence. Next, he c ontends that the officers were not entitled to follow th e escapin g suspect because he was not a "known felon". However, Gelho t observed these men engaging in what he reason ably and correctly believed to be a crack cocaine transaction. In Clement , we said cocaine traffickingwas
so serious an offense that it should be weighed heavily "as an importan t factor to be considered in the exigent circum stances calculus." 854 F.2d at 1120, quoting Welsh v. Wisconsin , 466 U.S. 740, 751 (1984). Accordingly, the officers were not required to identify the fleeing suspect as a "known felon" before pursuing him from the scene of this serious crime.

### 8 Finally, appellant contends that the police created the exigen t circumstances by approaching

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the po rch and that they could have avoided the warrantless entry by stationing an officer at the back door of the house. Again this argument relies p rimarily on hindsight. We view the circumstances from th e standpoint of these officers who were in the early stages of thei r investigationand had only begun their surveillance of the residence. It is entirely unreas onable from that standpoint to expect them to anticipate the events that ensued. We find no clear error in the findings of fact made by the Magistrate Judge and adopted by the district court. Under those facts, the district court's decision to deny appellant's motion to suppress was proper. V. CONCLUSION Based on the foregoing, the district court's order denying appellant's motion to suppress and its judgment of convi ction on Count 5 are AFFIRMED. The judgments of c onviction on Counts 2 and 6 are REVERSED and the case is REMAND ED to the district court for resentencing and recalculation of th e special assessment.

A true copy,

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT