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 States

District Court

 * for the Eastern District of

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 counts

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charging violations of narcotics laws and attendant firearms crimes. He

appeals his convictions on three counts. We affirm in part, reverse in

part, and remand for further proceedings.

I. PROCEEDINGS BELOW

The grand jury returned a six count indictment charging appellant 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 implicated

in this appeal. 

Appellant challenges his convictions on Counts 2, 5, and 6. Count 2

charged appellant with using a firearm in relation to a drug trafficking

crime on March 25, 1994. Counts 5 and 6 arose from events that occurred on

July 9, 1992. Count 5 charged appellant with possession of crack cocaine

with intent to distribute and Count 6 charged him with carrying or using a

firearm in relation to that crime.

On September 13, 1995, the district court imposed a sentence of

imprisonment for 481 months. With respect to the challenged convictions,

this sentence included 121 months for Count 5 followed by a consecutive

sentence of 10 years on the Count 2 firearm charge followed by another

consecutive sentence of 20 years on the Count 6 firearm charge. In

addition, appellant was charged a special assessment of $300 which

represented $50 for each count of conviction.

After appellant was tried and sentenced in this case, the Supreme

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 firearms

convictions on Counts 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 appeal 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 evidence seized during the warrantless entry into his house on

July 9, 1992 and to suppress statements he made to police officers at that

time. The district court determined that the warrantless entry into

appellant's residence was justified by exigent circumstances and that the

seizure of evidence found in plain view was proper.

II. STANDARD OF REVIEW

We have traditionally employed the "clearly erroneous" standard to

review the district court's denial of a motion to suppress evidence obtained

by a warrantless search. U.S. v. Johnson, 28 F.3d 1487, 1494 (8th Cir.

1994), cert. denied, ___U.S.___, 116 S.Ct. 768 (1995); U.S. v. Clement, 854

F.2d 1116, 1118 (8th Cir. 1988).

After submission of this case, the Supreme Court handed down its

opinion in Ornelas v. United States,___ U.S.___, 116 S.Ct. 1657 (1996).
3

Ornelas instructs us to review such determinations under a two stage

standard. The first part of the analysis involves only a
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determination of the historical facts leading up to the warrantless search.

The second part of the analysis requires a decision whether these historical

facts, when viewed from 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 that

exigent circumstances were present as a question of fact, to be reversed

only for 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.2d 653, 657 (8th Cir. 1982). We

gave particular deference to the fact finder who had the opportunity to

observe 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 "review

findings of historical fact only for clear error" and "give due weight to

inferences drawn from those facts by resident judges and local law

enforcement officers." Ornelas, 116 S.Ct. at 1663. Only the ultimate

conclusion that the historical facts amounted to "exigent circumstances" is

subject to de novo review. Id.

III. BACKGROUND

On May 4, 1995, Magistrate Judge Medler conducted an evidentiary

hearing on appellant's motion to suppress. At the hearing, the Magistrate

Judge heard testimony from and observed the demeanor and credibility of

Detective Gelhot and Officer King. The Magistrate Judge made findings of

historical fact that were adopted by the district court and formed the basis

upon which the motion to suppress was denied.

On July 8, 1992, Detective Gelhot of the St. Louis Police Department

met with a confidential informant. The informant described drug trafficking

activities at a certain address in St. Louis. He gave physical descriptions

of the building at that address and of the distributor who lived and carried

on his drug business there.

The informant said that the distributor typically sat on the front

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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exchange for crack cocaine. The distributor then would enter the house,

leaving the customer on the porch. When the distributor returned to the

porch, he would give the customer crack cocaine and the customer would

leave. The distributor would remain on the porch waiting for other

customers. The informant told Gelhot that the distributor kept a weapon on

or near his person or close by inside the residence.

Later that day, Gelhot drove by the address given by the informant

and observed a house fitting the description given by the informant. On

July 9, 1992, Gelhot 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.

Another 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 standing

on the porch holding the hand gun fled into the residence. Strehl went to

the porch where he remained with the seated individual. Gelhot and Murphy

pursued the other individual into the residence where they observed crack

cocaine, narcotics paraphernalia and firearms in plain view. Gelhot and

Murphy did not find the fleeing individual with the chrome plated firearm.

The seated individual on the porch was later identified as appellant.

Appellant was arrested and the items of evidence observed in plain

view were seized. Appellant gave inculpatory statements to the officers.

 These findings of historical fact are amply supported in the

record and we find no clear error. 

IV. DISCUSSION

 Police officers may not enter or search a home without a warrant unless

justified by exigent circumstances. See Payton v. New York, 445 U.S. 573,

589 (1980) (warrantless entry to make a felony arrest requires exigent

circumstances). The exigent circumstances exception to the warrant

requirement is narrowly drawn. U.S. v. Clement, 854 F.2d at 1119. The

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. Michigan v. Tyler, 436 U.S. 499, 509 (1978); Warden v.

Hayden, 387 U.S. 294, 298-99 (1967); Ker v. California, 374 U.S. 23, 42

(1963), U.S. v. Clement, 854 F.2d at 1119.
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The district court agreed with the conclusion of the Magistrate Judge

that exigent circumstances were present because the officers reasonably

inferred that the suspect who fled into the house might escape or destroy

evidence in the house. Under Ornelas, we review the district court's

conclusion de novo.

It is abundantly clear that an objectively reasonable police officer,

knowing the information known by Gelhot and observing the two men on the

porch of appellant's residence, would conclude that the two men were

conducting an illegal narcotics transaction. At that point, both men would

reasonably be considered criminal suspects. An objectively reasonable

police officer would infer that the suspect who ran into the house was

attempting to escape. 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 the

escaping suspect might try to destroy or remove evidence in the house. It

would also be reasonable for such an officer to believe that the presence

of an armed suspect inside the house presented a threat to the lives of the

officers outside. For all these reasons, the actions of the fleeing suspect

required immediate police action without delaying to obtain a warrant.

Appellant's arguments have no merit and require little discussion.

First, he contends that the police were not justified in believing that

evidence might be destroyed. He argues that the fleeing suspect's only

motivation was to escape and that he would not have jeopardized his retreat

by stopping to destroy evidence. This position relies too heavily on

hindsight. We must view the facts from the standpoint of the officers at

the scene. From that standpoint, it was reasonable to believe that the

fleeing suspect, if not pursued by the officers, might stop to destroy or

remove evidence.

Next, he contends that the officers were not entitled to follow the

escaping suspect because he was not a "known felon". However, Gelhot

observed these men engaging in what he reasonably and correctly believed to

be a crack cocaine transaction. In Clement, we said cocaine trafficking was

so serious an offense that it should be weighed heavily "as an important

factor to be considered in the exigent circumstances 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.
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Finally, appellant contends that the police created the exigent

circumstances by approaching
9

the porch and that they could have avoided the warrantless entry by

stationing an officer at the back door of the house. Again this argument

relies primarily on hindsight. We view the circumstances from the

standpoint of these officers who were in the early stages of their

investigation and had only begun their surveillance of the residence. It

is entirely unreasonable 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 conviction on Count 5 are AFFIRMED.

The judgments of conviction on Counts 2 and 6 are REVERSED and the case is

REMANDED to the district court for resentencing and recalculation of the

special assessment.

A true copy,

Attest:

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