IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20359

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONNIE LAMONT BLOUNT;

GAYLIN TEROD JOHNSON,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court for the

Southern District of Texas, Houston

_________________________________________________________________ September 22, 1997

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM,

DAVI S, JONES, SMITH, DUHÉ, WIENER,* BARKSDALE, EMILIO M. GARZA,

DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A divided panel of this court concluded that the defendants’

motion to suppress evidence in this drug trafficking and firearms

case should h ave been granted by the district court. The panel

therefore reversed the convic tions of Donnie Lamont Blount and

Gaylin Terod Johnson, over the dissent of one panel member. U nited

States v. Blount

, 98 F.3d 1 489 (5th Cir. 1996), r eh’g en banc

granted

, 104 F.3d 58 (5th Cir. 1997). We voted to rehear the case

en banc , principally to address the application of the Supreme

____________

*Judge Wiener concurs only in Part IV.A of the majority opinion.1 Blount argues that the evidence was insufficient to sustain

his convictions on the firearms counts under the Supreme Court’s

decision in B ailey v. United States

, U.S. , 116 S.Ct. 501

(1995). The government now concedes that the evidence was

insufficient under Bailey

.

2 Court’s decision in Illinois v. Gates

, 462 U.S. 213, 103 S.Ct. 2317

(1983), to st atements made by crime scene bystanders who are

ordinary citizens with knowledge of specific criminal activity. We

con clude that the officers’ initial warrantless entry into the

residence was justified by exigent circumstances, that the

affidavit for the search warrant was supported by probable cause,

and that the district court therefore properly denied the motion to

suppress. We affirm Blount and Johnson’s convictions on the drug

trafficking charges. We agree with the unanimous panel, however,

that the evidence was insufficient to support Blount’s firearms

convictions, and we reverse and render a judgment of acquittal on

those counts. 1

I

On September 13, 1994, Officer Alan Weston of the Houston

Police Department’s Violent Gang Task Force received a tip from a

confidential informant. The informant stated that he had observed

the sale of crack cocaine in a house located at 3717 Campbell

Street, in Houston’s Fifth Ward district, an area with a high rate

of gang-related drug crimes. The informant did not know the name

of the suspect who sold the drug s, but provided Weston with a

general description; the informant also told Weston t hat the3

suspect had a “large, blue steel pistol” lying on the couch beside

him. The informant further stated that the house in question was

being used as a crack house by the Fifth Ward Posse. Officer

Weston was well aw are that the Fifth Ward Posse was a violent

criminal street gang. The informant reported that he had seen

several members of that gang at 3717 Campbell.

Weston performed a comp uter check on 3717 Campbell. He

discovered that two months previously, an aggravated sexual assault

with a firearm had been reported at that address. The report named

“Ricky” and “Lamont” as suspects. On the basis of the detailed

information provided by the informant, W eston went before a

magistrate judge and obtained a search warrant for the residence at

3717 Campbell. The warrant also authorized the arrest of the

unknown black male suspect. The defendants do not contest the

validity of this warrant.

After obtaining the w arrant, HPD officers made a

“tentative ID” of the suspect as one Richard J. Thomas, based upon

further research that disclosed that (1 ) Thomas had previously

lived down the street from 3717 Campbell, (2) Thomas was known as

“Ricky” and matched the physical description given by the

informant, and (3) Thomas had a felony record.

At around 6:15 a.m. on September 15, as many as twelve

officers from the HPD and the Bureau of Alcohol, Tobacco and

Firearms raided the house at 3717. The officers were dressed in

official HPD and ATF raid gear, with patches identifying them as2 The officers’ extensive experience with criminal drug

operations suggested to them that there must be a second house

involved in the operation: a “stash house” where the bulk of the

cocaine supply is kept under guard, and where wholesale amounts

might be sold to street pushers.

4 law enforcement officia l s. The officers announced themselves

loudly and then immediately rammed the front door of the house to

gain entry. A suspect matching Thomas’ description escaped through

a rear side door, while officers stationed at the rear attempted to

fend off a pit bull dog in the back yard. The suspect escaped over

a fence to the north, and the officers lost sight of him.

Inside the house, the officers found crack cocaine, cash and

a handgun. It appeared that no one actually lived in the house,

and the characteristics of the house suggested to the officers that

it was being used as a “smoke house,” where small retail amounts of

crack cocaine were sold directly to users. 2 The defendants do not

contest the validity of this search.

Although some of the agents departed after they were unable to

locate the fu gitive suspect, Officer Weston and ATF agents Brown

and Gary continued to search. Approximately fifteen to twenty

minutes after the rai d, the officers noticed Ms. Dorothy Cooksey

outside her house. Cooksey appeared agitated. Although Cooksey at

first indicated that she saw nothing, when Weston pressed her she

explained that several minutes earlier “Ricky” had attempted to

force his way into her home in order to hide from police.5

Cooksey identified “Ricky” as Richard J. Thomas from the photo

carried by Officer Brown; Cooksey said that she knew and feared

Thomas, and did not want her name used. She told the officers that

Tho mas would “end up” at the house on the corner of Bleker and

Campbell, which was where Thomas lived, and where he, “Lamont with

the Afro” and others “sold dope.” Cooksey stated that the house

was a known drug house. The house on the corner to which Cooksey

directed the officers was 2302 Bleker Street, and was directly

adjacent to the house at 3717 Campbell. Ms. Cooksey lived at 23121⁄2

Bleker, just two houses north of 2302 Bleker.

The remaining officers proceeded to 2 302 Bleker. Officer

Weston went to the rear o f the house while the other officers

pounded on the front door, announcing themselves as police and

indicating that they needed to speak to the residents. The

officers at the front heard one person say “who i s it?” and then

heard commotion and movement from inside the house. Meanwhile,

Officer Weston peered throug h a four-inch gap in a boarded-over

wi ndow at the rear of the house; inside Weston observed a black

male with an “Afro” style haircut fiddling with the lock on a

closet.

The officers continued to knock. After ten or fifteen minutes

of knocking and demands by the police, one of the residents called

9-1-1 to report a burglary in progress. Within minutes, marked HPD

patrol cars arrived at the scene. After discussing the situation

with the new arrivals, Officer Brown and a uniformed patrol officer6

approached the front door. Defendant Blount, who had an “Afro”

haircut, defendant Johnson, and Otis Green, a minor, came out of

the house. Blount, Johnson, and Green were all dressed in what

Weston described as typical gang-styl e clothing. The three were

immediately patted down, handcuffed and d etained on the porch.

Blount tried to explain that he had not opened the door because he

had been smoking marijuana in a cigar.

The officers then made a “protective sweep” to determine

whether Thomas or anyone else was hiding in the house. The

officers did not obtain permission, but simply entered through the

open front do or. The officers did not find Thomas, but they

observed a razor blade with a white powdery residue in plain view

on the kitchen counter. The residue field-tested positive for

cocaine.

At this point, the officers exited the house, discussed what

to do, and decided to get a search warrant for the hou se. They

thus decided to maintain custody of the house and the detainees

while a search warrant was obtained. The detainees were read their

Miranda rights after the sweep. Weston prepared an affidavit,

describing th e escape of the suspect from 3717 Campbell, his

conversation with Ms. Cooksey, and the events that occurred at 2302

Bleker, including a statement that cocaine residue was found during

the sweep of 2302 Bleker.

The affidavit was submitted to the same magistrate judge who,

two days earlier, had authorized the search of 3717 Campbell. The7

magistrate judge issued a search warrant and an arrest warrant for

Blount and other persons in control of illegal drugs at the house.

During the second, more thorough search of 2302 Bleker, the

off icers found crack cocaine in wholesale quantities, cash and

several firearms, one with a silencer. Some of the drugs and

firearms were found in the locked closet at which Weston had

observed Blount b efore the sweep; a .38 caliber revolver bearing

Blount’s fingerprints was found on top of a television stand in the

living room. After the search was executed, Blount and Johnson

were formally arrested.

II

Blount and Johnson were indicted in federal district court for

the Southern District of Texas for conspiracy to possess with

intent to distribute 50 grams or more of cocaine, in violation of

21 U.S.C. § 846 (Count 1); aiding and abetting such possession, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2);

using or carrying a firearm in relation to a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and using

or carrying a firearm equipped with a firearm silencer in relation

to a drug trafficking offense, in viola tion of § 924(c)(1)

(Count 4).

Blount filed a pre-trial motion to suppress the fruits of an

illegal search, which Johnson joined. Blount and Johnson alleged

that they were illegally arrested without probable cause, and that

the initial, warrantless sweep of 2302 Bleker was also an illegal8

search. Blount sought suppression of his statement that he had

been smoking marijuana, and both defendants sought to suppress the

evidence found during the initial sweep and the subsequent

execution of the search warrant for 2302 Bleker.

The district court held a pre-trial evidentiary hearing on the

motion to suppress. The court found that Officer Weston’s peering

through the back window was not an unconstitutional search because

Weston was legitimately in the back yard to ensure that the suspect

they were chasing did not again escape. The court further found

that, at the time the defendants were handcuffed and detained, the

officers had probable cause to arrest them for harboring a fugitive

and for possession of illegal narcotics, and that the initial sweep

of the Bl eker Street house was a proper protective sweep.

Alternative ly, the court found that the officers’ actions were

justified by exigent circumstances.

Following trial before a jury, Blount and Johnson were both

convicted on the drug trafficking counts (Counts 1 and 2). Blount

was convicted on the firearms counts, but Johnson was found not

guilty (Counts 3 and 4). Both defendants appealed. A divided

panel of this court reversed the district court’s denial of the

motion to suppress, and vacat ed the defendants’ convictions on

Counts 1 and 2. The panel agreed that insufficient evidence

supported Blount’s convictions on Counts 3 and 4. We determined to

rehear the appeal en banc

. U nited States v. Blount

, 104 F.3d 58

(5th Cir. 1997).910 III

Blount and Johnson contend that the evidence from 2302 Bleker

s hould have been suppressed because the police officers’ initial

“protective sweep” into 2302 Bleker was unconstitutional, and

therefore the subsequent search warrant was invalid as it was based

upon an affidavit containing evidence obtained during the illegal

first search.

The government responds first that the officers’ initial sweep

into the Bleker Street house was justified by exigent

circumstances, including the “hot pursuit” of a fleeing felon, the

danger that contraband or other e vidence would be destroyed, and

the danger to the officers and bystanders who had begun to gather

near the house. Second, the government argues that the initial,

brief search of 2302 Bleker was a lawful protective sweep incident

to arrest.

In making their various arguments, the defendants strenuously

dispute the officers’ reliance on the statements made at the scene

by the neighbor, Ms. Cooksey. Blount and Johnson argue that the

information received from Cooksey cannot form the basis of a

finding of probable cause to believe drugs were being sold from

2302 Bleker Street. They insist that Cooksey’s statements cannot

be considered relia ble because she is an “unnamed, unknown,

untested, and unproven” informant. They argue that the police were

required to first set up surveillance on 2302 Bleker to determine

whether t he information provided by Cooksey could be considered11

reliable. Blount and Johnson insist that under the Supreme Court’s

decision in Gates

, tips such as Ms. Cooksey’s must be “corroborated

by independent police work” before they can form the basis of

probable cause. See Gates , 462 U.S. at 241-246, 103 S.Ct. at

2334-2336.

The government counters that “independent corroboration” of

Cooksey’s information was not required under the circumstances of

this case. Principally, the government argues that as an “average

citizen,” rather than an anonymous tipster as in Gates

, the

information that police received from Ms. Cooksey may legitimately

be presumed credible. The government cites a variety of cases in

which courts have held th a t “citizen informants,” “identified

bystan ders,” victims and crime scene witnesses may generally be

presumed credible by police in a way that professional informants

are not.

IV

As we have earlier suggested, we elected to rehear this case

en banc in order to explain that the “totality of the

circumstances” standard announced in Gates does not impose a

requirement of corroboration in all cases. In this context, we

iterate our previous authority and hold that, absent specific

reasons for police to doubt his or her truthfulness, an ordinary

citizen, who provides information to police at a crime scene or

during an ongoing investigation, may be presumed credible without12

subsequent corroboration. We turn now to review the meaning of

Gates as it relates to the case before us today.

A

Gates represents a relaxation of the formalities required for

support of a search warrant. Before the Supreme Court’s decision

in Gates , the federal courts generally applied a somewhat rigid

“two-pronged” test to determine w hether the statements of an

informant could establish probable cause for a search warrant to

issue. Under the test derived from A guilar v. Texas

, 378 U.S. 108,

84 S.Ct. 1509 (1964), and Spinelli v. United States

, 393 U.S. 410,

89 S.Ct. 584 (1969), reviewing courts required that the warrant

affidavit demonstrate both the informant’s basis of knowledge and

offe r some indication of the informant’s credibility or the

reliability of the information offered. In G ates

, the Supreme

Court observed that the “two-pronged” approach ha d become unduly

rigid in its application, and reiterated that a simple “totality of

the circumstances” test was appropriate for probable cause

determinations. 462 U.S. at 230-231, 103 S.Ct. at 2328.

Gates concerned a narcoti c s investigation prompted by an

anonymous tip . Police received an unsolicited, unsigned letter

stating that Sue and Lance Gates were involved in selling drugs.

The letter specified drug-related transactions that would occur on

a particular date. Although police had no prior knowledge of the

Gateses, they investigated the tip. The police did not observe

either Sue or Lance Gates with drugs or known dealers, but they did13

observe that the unusual facts predicted by the letter--t hat Sue

Gates would drive a car from Illinois to Florida and fly home while

Lance Gates would fly to Florida and drive the car home--were

accurate. Upon that basis, the police obtained a search warrant

for the car and for the couple’s home.

The Supreme Court suggested that, standing alone, the

anonymous tip would not be sufficient for a finding of probable

cause. However, the Court cited “the value of corroboration of

details of an informant’s tip by independent police work.” I d. at

241. The Court concluded that because the informant’s tip

concerning the Gateses had been corroborated by the officers’

investigation--even though no illegality had been observed--

probable cause was established under the totality of the

circumstances. Id. at 246, 103 S.Ct. at 2334.

Gates states that probable cause is a “fluid concept” that is

“not readily, or even use fully, reduced to a neat set of legal

rules,” Id. at 232, 103 S.Ct. at 2329. Blount and Johnson argue,

nonetheless, that Gates represents a requirement that the

statements of informants be corroborated by subsequent, independent

police invest igation before they may be considered sufficiently

reliable to establish probable cause. Yet G ates i tself rejects

this argument, noting th at “if an unquestionably honest citizen

comes forward with a report of criminal activity- -which if

fabricated would subject him to criminal liability--we have found

rigorous scrutiny of the basis of his knowledge unnecessary.” I d.14

at 233-234, 103 S.Ct. at 2330 ( citing Adams v. Williams , 407 U.S.

143, 146-147, 92 S.Ct. 1921, 1923-1924 (1972)). Similarly, in

United States v. Fooladi

, 703 F.2d 180 (5th Cir. 1983), a pre- Gates

decision, Judge Rubin of this court noted that “when an average

citizen tenders informati on to the police, the police should be

permitted to assume that they are dealing with a credible person in

the absence of special circumstances suggesting that such might not

be the case.” Id. at 183 ( quoting 1 W. LaFave, Search & Seizure,

§ 3.4(a), at 592 (1978)). It cannot be said that F ooladi

, which

w as decided under the more stringent requirements of Aguilar and

Spinelli , does not remain valid after Gates ; in fact, the commonsense approach adopted by the Supreme Court in Gates simply

strengthens the position adopted in Fooladi

.

There is no set requirement that all tips be corroborated by

subsequent police investigation in order to be considered credible.

Whether subsequent corroboration is necessary must be determined in

the light of the totality of the circumstances presented by the

particular set of facts. We conclude that under the totality of

the circumstances in this case, Ms. Cooksey’s statements provided

the police with probable cause to bel ieve that illegal narcotics

would be found in 2302 Bleker.

When the police fir st noticed Ms. Cooksey, they had already

amassed a substantial amount of information from their earlymorning raid at 371 7 Campbell. The officers knew that a black

male, tentatively identified as Ricky Thomas, had been se lling15

crack cocaine from 3717 Campbell. Officer Weston testified at the

suppression hearing that 3717 Campbell matched the description of

a “smoke house,” used only to sell small retail amounts of crack

cocaine directly to users, some of whom may be permitted to remain

at the ho use to smoke the cocaine. These officers had extensive

experience with drug operations. Based on that experience, the

officers knew that it was probable that there would be a more

heavily-guarded “stash house” nearby, where the bulk of drugs and

cash were kept, and from which the dealers might sell crack cocaine

in wholesale amounts to street dealers. The officers expected

other individuals, probably gang members with Thomas, to be

involved in the operation. The officers also believed that Thomas

and someone named “Lamont” had committed an aggravated sexual

assault with a firearm at 3717 Campbell two months before the raid.

The information that Ms. Cooksey provi ded to the officers

“fit” with what they already knew. From the picture carried by one

of the officers, Cooksey con firmed that their suspect, whom she

knew as “Ricky,” was Richard J. Thomas. Cooksey indicated that

Ricky did not live at 3717 Campbell, but at 2302 Bleker. She

confirmed that Thomas was involv ed in selling drugs, and also

connected Thomas with a “Lamont” through her statement that “Lamont

with the Afro” and others sold dr ugs from 2302 Bleker.

Furthermore, Cooksey identified 2302 Bleker as a known drug house

in her neighborhood.16

The officers had no reason to disbelieve Ms. Cooksey, or to

question her motives or credibility. Cooksey was n ot an anonymous

tipster or a paid informant. Although the warrant affidavit does

not give Cooksey’s name

, the affidavit states that the information

was solicited from a female who (1) lived at 23121⁄2 Bleker, two

houses away from the subject house, (2) knew and feared the

fugitive Ricky Thomas, and (3) had observed Thomas attempt to kick

in her door in an effort to hide from police. This information

adequately identifies Ms. Cooksey as a citizen providing

information during a crime scene investigation in her immediate

vicinity.

Unlike the anonymous tipster in Gates

, whose unsolici t ed

information concerned people unknown to police, Cooksey’s

statements were solicited by police after they observed her outside

her house on the morning in question. Cooksey’s statements fit

into the end of an ongoing investigation, rather than prompting the

beginning of a new one. The immediacy of the investigation, with

a fleeing felon on the loose, is also a relevant consideration.

Under the circumstances, “independent police corroboration” of the

information given by Ms. Cooksey was not required. We conclude

that under Gates

, and under our specific precedent of Fooladi

,

Cooksey’s statements pro vided the police with probable cause to

believe that (1) Ricky Thomas might be hiding in 2302 Bleker, and

(2) illegal drugs would be found at 2302 Bleker.3 Because we affirm the district court’s denial of the motion

to suppress on the grounds that exigent circumstances existed, we

do not consid er the government’s argument that the officers’

initial entry in to the house was a proper sweep incident to a

lawful arrest. Thus, it is unnecessary to reach the question

whether there was probable cause to arrest Blount and Johnson when

they exited 2302 Bleker.

17 B

The government argues that Cooksey’s statements, combined with

the information that the officers had already obtained, established

exigent circumstances justifying the officers’ initial entry into

2302 Bleker. Although a warrantless entry into a home is

presumptively unreasonable, entry m a y be justified by exigent

circumstances. U nited States v. Rico

, 51 F.3d 495, 501 (5th Cir.),

cert. deni ed

, U.S. , 116 S.Ct. 220 (1995) ( c iting United

States v. Richard , 994 F.2d 244, 247 (5th Cir. 1993)). The

g overnment bears the burden of proving that an exigency exist ed.

Id. ( citing United States v. Thompson

, 700 F.2d 944, 946 (5th Cir.

1983)). In this case, the district court specifically found that

exigent circumstances existed. This determination is reviewed only

for clear error. U nited States v. Howard

, 106 F.3d 70, 74 (5th

Cir. 1997) ( citing Richard

, 994 F.2d at 248). We conclude that the

district court did not clearly err. 3

Because it is essentially a factual determination, there is no

set formula for determining when exigent circumstances may justify

a warrantless entry. Exigent circumstances generally exist where

there is a risk that the officers or innocent bystanders will be18

endangered, or that evidence will be destroyed. In R ico

, we

identified a non-exhaustive list of factors that may be considered

in determining whether exigent circumstances existed:

(1) the degree of urgency involved and the amount of time

necessary to obtain a warrant;

(2) the reasonable belief that contraband is about to be

removed;

(3) the possibility of danger to the police officers

guarding the site of contraband while a search warrant is

sought;

(4 ) information indicating that the possessors of the

contraband are aware that the police are on their trail;

and

(5) the ready destructibility of the contraband and the

knowledge that efforts to dispo se of narcotics and to

escape are characteristic behavior of persons engaged in

the narcotics traffic.

Id. at 501 ( citing Richard

, 994 F.2d at 248) (internal brackets and

quotation marks omitted).

The exigent circumstances analysis focuses upon the

reasonableness of the officers’ investigative tactics leading up to

the warrantless entry. Our purpose is not to examine each act in

isolation and inquire w hether the officers c ould have acted

differently. If “reasonable minds may differ” the courts should

not second-guess the judgment of experienced law enforcement

officers concerning the risks of a particular situation. Howard

,

106 F.3d at 76.

In this case, the officers faced two sepa rate, but related

concerns when they first approached 2302 Bleker: the officers were19

attempting to apprehend and arrest Ricky Thomas, and the officers

reasonably believed that a violent drug-trafficking gang, to which

Thomas belonged, was operating from 2302 Bleker as its stash house.

Blount and Johnson argue that the officers were required to

set up surveillance of the house and obtain a warrant; they contend

that any exigency that existed was “manufactured” by the officers

when they approached the front door of 2302 Bleker. It is true

that the prosecution may not rely upon an exigency that the police

themselves created through unreasonable investigatory tactics.

Richard , 994 F.2d at 248. This, however, is not such a case.

As we have already concluded, Ms. Cook sey’s statements,

combi ned with the information the officers had already obtained,

gave the officers probable cause to believe both that Thomas could

be hiding in 2302 Bleker and that the othe r residents of 2302

Bleker were engaged in drug trafficking. This fast-moving and

unpredictable scene in a tough neighborhood infected by a violent

drug-trafficking gang was simply not a case where the officers

could safely set up surveillance while they awaited a search

warrant.

First, the officers were continuing an immediate search for a

fleeing f elon who had already escaped once from a large group of

officers. The officers had confirmed that Thomas was engaged in

the sale of crack cocaine, and he was a suspect in an armed sexual

assault. The officers reasonably believed that Thomas was armed,

dangerous, and would attempt to evade capture. It would have been4 This situat ion is entirely different from that in R ichard

,

where we held th at the government manufactured an exigency by

approaching a hotel room without any reason to believe that the

occupants were aware that they mi ght be under surveillance.

Richard , 944 F.2d at 249.

20 virtually impossible for the officers to covertly secure 2302

Bleker against Thomas’ escape.

Moreover, Thomas was not the officers’ sole concern. The

officers reasonably believed that 3717 Campbell and 2302 Bleker

were two houses being employed by a violent criminal street gang in

its cocaine trafficking operation. The house at 2302 Bleker, the

officers believed, was the “stash” house from which the conspiracy

operated. Considering that 2302 Bleker was a mere fifteen feet

away from 3717 Campbell, where as many as twelve law enforcement

officers had executed an early morning raid, it would be

unreasonable to suppose that the residents of 2302 Bleker were not

aware of the officers’ presence. 4

Under the circumstances, the officers’ decision to immediately

approach 2302 Bleker and ask to speak to the residents was

reasonable. They were looking for Ricky who might well have been

in the house. They had been told by a neighbor that it was his

residence, and that at some point he would land there. They had

been told by that neighbor that drugs were sold there. They knew

that Ricky sold drugs. They had reason to believe that members of

a violent gang were also involved. They had reason to believe that

2302 Bleker was the “stash house” for the drug operation they had5 Although the firearm found at 3717 Campbell may well ha v e

been the handgun observed by the confidential in formant, it was

possible--if not likely--that the f leeing suspect had access to

more than one firearm. Furthermore, gang-related drug trafficking

operations predictably involve firearms.

21 earlier uncovered. The fact that the residents refused to come to

the door or to communicate with the officers but were heard moving

around within the house added to an intense and volatile situation

and--importantly--to the likelihood that significant evidence was

being destroyed. We have previously observed that the destruction

of narcotics is a “characteristic behavior” of those engaged in

drug trafficking. Thompson , 700 F.2d at 948.

The situation also remained potentially explosive from the

officers’ reasonable point of view. Not only are firearms “tools

of the trade” in illegal drug trafficking, Howard

, 106 F.3d at 75,

but the fugitive member of the drug conspiracy had previously been

observed with a handgun, and a firearm had been found in the raid

on the first house. 5

These concerns were not eliminated at the point when the three

residents of 2302 Bleker exited the house. As far as the officers

knew at the time, Tho mas and perhaps others involved in the drug

trafficking operation might still be hiding in the house,

barricading themselves against a n arrest. Furthermore, any

individuals who remained inside might still be destroying evidence.

If so, a sweep through the house was the officers’ only opportunity

to recove r remnants of attempts at drug destruction, which would6 Because w e have concluded that exigent circumstances

justified the officers’ protective sweep into 2302 Bleker, during

which cocaine residue and items used in the preparation of crack

cocaine were discovered in plain view, we do not consider the

appellants’ challenges to Officer Weston’s alleged “search” through

the window at the r ear of the house and to the use of Blount’s

statement that he did not open the door or respond to the officers’

requests because he had been smoking marijuana. For the purposes

22 likely be lost during the intervening time required to obtain and

execute a search warrant. Importantly, several onlookers had begun

t o gather near the house, who would be endangered if a barricade

and shoot-out were allowed to develop. Against the backdrop of

these fac ts, the officers had to decide whether to make an entry

and fully secure the crime scene or to “pull out,” leaving outside

security surrounding the house and d elay further action until a

warrant application could be prepared and a warrant obtained. The

decision that the officers made was not unreasonable. To hold

otherwise would ignore the interplay between the officers’

continuing efforts to apprehend Thomas and the officers’ reasonable

belie f that 2302 Bleker was a “stash” house--connected with 3717

Campbe ll that the officers had earlier raided--where drugs were

being kept and sold by dangerous gang members in a violence-prone

section of the city.

Finally, we underscore a point that cannot be brushed aside:

our standard of review is highly deferential. Under the

circumstances, we conclude that the district court was not clearly

erroneous in its finding that exigent circumstances justified the

officers’ initial entry into 2302 Bleker. 6of this opinion, we therefore excise this evidence from the

affidavit supporting the search warrant. We conclude that the

evidence remaining in the affidavit, in particular the cocaine

residue that was properly observed during the protective sweep, was

more than sufficient to provide probable cause f or the search

warrant to issue. It is also clear that, given the officers’

dis covery of cocaine residue, no reasonable factfinder could

conclude that either Weston’s observing Blount through the window

or Blount’s statement prompted the officers to seek the search

warrant. Therefore, there is no need to remand the case under

Murray v. United States

, 487 U.S. 533, 542, 108 S.C t. 2529, 2536

(1988) (remanding case for district court to determin e whether

officers’ unconstitutional search of warehouse was “confirmatory

search” that prompted officers’ decision to later obtain a warrant

to search the warehouse legally). Finally, to the extent that any

evidence of Blount’s statement or of Weston’s challenged “search”

through the window was admitted at trial, any error in admitting

the evidence was harmless beyond a reasonable doubt. It is

inconceivable that this evidence contributed in any material way to

the defendants’ cocaine-trafficking convictions, which were

supported by overwhelming evidence obtained during the execution of

the search warrant for 2302 Bleker.

23 V

Thus, we sum up: Based upon Cooksey’s statements and the

information that the officers had already amassed, the officers had

probable cause to believe that Thomas might be hiding in 2302

Bleker, and that drugs or other contraband would be found there.

We further have concluded that the officers’ investigative tactics

were not unreasonable, and that the district court’s finding that

exigent circumstances existed was not clearly erroneous.

Consequently, the evidence referred to in the affidavit was

properly obtained and supported a finding of probable cause. The

search wa rrant was therefore valid, and the district court

correctly denied Blount and Johnson’s motion to suppr ess the

evidence found at 2302 Bleker.24

Blount and Johnson’s convictions on Counts 1 and 2 are

therefore AFFIRMED. Blount’s convictions on Counts 3 and 4 for

d rug-related firearms violations are REVERSED, and a judgment of

acquittal is RENDERED on those counts.

AFFIRMED in part; REVERSED in part;

and RENDERED in part.

ENDRECORD7 

### 462 U.S. 213 (1983).

25



### POLITZ, Chief Judge, with whom WIEN ER and DENNIS, Circuit Judges, join,

dissenting:

The majority opinion notes that the court determined to rehear this case en banc

to address the application of Illinois v. Gates 7 

### to statements made by ordinary citizens

who are crime scene bystanders with knowledge of specific criminal activity. After

performing that Gates analysis, however, the majority opinion further concludes that

exigent circumst ances justified the warrantless entry into 2302 Bleker Street. Persuaded

that the district court’s ru l ings on the existence of probable cause and exigent

circumstances were clearly erroneous, I must dissent.

After evaluating the totality of the circumstances, as Gates requires, the majority

concludes that Dorothy Cooksey’s statement to the police provided probable cause for

the officers to believe (1) that illegal narcotics would be found at 2302 Bleker Street

and (2) that Ricky Th omas was hiding there. Noting that her statement “fit” with

information the officers alre a dy had, the majority identifies several things that the

g overnment “knew” from their early morning raid at 3717 Campbell. The officers

knew that a bl ack male, “tentatively identified as Ricky Thomas,” had been selling

narcotics from 3717 Campbell. They suspected, based on what they found in the raid,

that a heavily-guarded “stash hous e” would be located nearby. They expected that26 

### 26 “other individuals, probably gang members,” would be involved in sel ling narcotics

with the suspected Thomas. Finally, they believed that their suspect and someone

named “Lamont” had committed an aggravated sexual assault with a firearm at 3717

Campbell two months earlier. Cooksey identified the man in the photo the police

showed her as Richard J. Thomas and told them that he ultimately would return to his

residence at 2302 Bleker, which she said was a “known drug house.”

The majority maintains that there was no reason for the officers to disbelieve

Cooksey or to question her motives or credibility, holding that “absent specific reasons

for police to doubt his or her truthfulness, an ordinary citizen, who provides information

to police at a crime scene or during an ongoing investigation, may be presumed credible

without subsequent c orroboration.” The majority ignores the fact that the record

contains different versions of what Cooksey told the police. It also sidesteps the fact

that although Cooksey lived two houses north of 2302 Bleker, she could not see that

house from her own and she did not tell the police that she had actually seen Ricky go

there. Further, there is more than a mere measure of doubt in suggesting that it was

reasonable for the police to assume that Thomas, if there, would continue to hide in the

house which was only fifteen feet from the site of the raid at 3717 Campbell.

The supporting affidavit for the search warrant included other information of

questionab le validity. The majority opinion opts not to address whether Officer

Weston conducted an unconstitutional search by peeking through the rear window of

2302 Bleker. Although a piece of plywood covered most of the opening, by leaning8 

### See Whren v. United States , 116 S.Ct. 1769 (1996) (proper focus of fourth

amendment inquiry is the objective conduct, not the subjective intent, of the police

officer); United States v. Causey , 834 F.2d 1179 (5th Cir. 1987) (en banc) (same).

27 

### 27 against the house and pressing his face within inches of a small gap in the plywood,

Weston was able to see inside. In his affidavit he stated that he “observed the suspect

Donnie Lamont Blount moving around the room and [he] appeare d to be hiding

someth ing.” The police later found cocaine, drug paraphernalia, and firearms in a

locked closet.

The district court found that Weston’s actions did not constitute an illegal search

because he was in the backyard to seal an avenue of escape, not to peer into the

window. This factual finding regarding Weston’s s ubjective state of mind is inapposite

to the question presented, i.e.

, whether Weston’s objective conduct violated the

defendants’ legitimate expectation of privacy in the curtilage of their home. 8 

### When a

police officer walks into the partially fenced back yard of a residential dwelling, using

a passage not open to the general public, and places his face within inches of a small

opening in an almost completely covered rear window to look into the house and at the

inhabitants, I am persuaded beyond peradventure that the officer has p erform ed a

“search” within the meaning of the fourth amendment. The majority claims that to the

exte nt any of the evidence from this “search” was admitted at trial, any error was

harmless because t here was overwhelming evidence to support the convictions. My

read of the record convinces otherwise. In the instant case, Weston’s actions provided9 

### My review of the record persuades that this justification for the arrests only

evolved during the defendants’ trial, with supporting testimony from Weston elicited

by the leading questions from the prosecutor. Our en banc holding in Causey

, however, requires that we ignore this pretextual submission and confine our

examination to the propriety of the officers’ objective actions. United States v.

Flores , 63 F.3d 1342 (5th Cir. 1995).

28 

### 28 essential information for obtaining the search warrant. I cannot agree that the error was

harmless.

The majori ty purports to excise Weston’s observations from the affidavit

supporting the search warrant and concludes that the remaining evidence sufficed to

provide probable cause. Some of the critical remaining evidence, including the

presence of cocaine residue in plain view in the kitchen, was obtained in the protective

sweep the officers conducted after Blount and Johnson opened the door to the

uniformed officers they had summoned by dialing 911. The government contends that

the officers’ entry was a proper sweep incident to a lawful arrest. The majority justifies

the search by concluding that exigent circumstances existed in doing so, ignoring the

difficult issue of probable cause to arrest Blount and Johnson. I find their analysis

flawed in several respects.

If Cooksey’s statements are given less than dispositive weight in the calculation

and tainted evidence is excluded, probable cause is wanting for either a search of 2302

Bleker or the arrest of Blount and Johnson. The district court found that the police had

probable cause to arrest the defendants for the crimes of harboring a fugitive (Thomas)

and possessing contraband. 9 

### A precondition to the crime of harboring a fugitive under10 

### See 18 U.S.C. § 1071; United States v. Zerba , 21 F.3d 250 (8th Cir. 1994);

United States v. Lockhart , 956 F.2d 1418 (7th Cir. 1992).

11 

### Tex. Penal Code Ann. § 38.05; Antu v. Eddy , 914 S.W.2d 166 (Tex. App.--

San Antonio 1995).

12 

### 494 U.S. 325 (1990).

13 

### United States v. Mendoza-Burciaga , 981 F.2d 192 (5th Cir. 1992).

14 

### United States v. Richard, 994 F.2d 244 (5th Cir. 1993).

29 

### 29 federal law is the issuance of an arrest warrant. 10 

### The police were well aware that there

was no extant arrest warrant for Thomas at the time Blount and Johnson were arrested.

The analogous Texas statute requires knowledge of the fugitive’s status an d some

affirmative action hindering police access to a felon. 11 

### The police in this case simply

arrested the defendants on first sight, inquiring about Thomas’s whereabouts only after

the defendants had been “secured.” On these facts an objectively reasonable police

officer would have had no probable cause t o arrest the defendants for harboring a

fugitive. While we have extended the Supreme Court’s holding in Maryland v. Buie 12



### to permit a protective sweep ancillary to a warrantless arrest, 13 

### the fourth amendment

does not sanction such a search incident to an illegal arrest.

Without probable cause to arrest or perform a search, the police may not enter

without a warrant. Although exigent circumstances permit police to perform a

warrantle ss search, officers may not rely on exigencies that they created through

unreasonable investigatory tactics. 14 

### Warrantless searches are presum ed to be

unreasonable and the government bears the burden of proving that such a search was15 

### United States v. Rico , 51 F.3d 495 (5th Cir.), cert. denied , 116 S. Ct. 220

(1995).

30 

### 30 necessary. 15 

### My review of the record compels the conclusion that the district court

clearly erred in finding exigent circumstances.

The majority characterizes the circumstances surrounding the search as a “fastmoving and unpredictable scene in a tough neighborhood infected by a violent drugtrafficking gang.” According to the opinion, the police were in pursuit of a “ fleeing

felon” and had a reasonable belief that he was “arm ed, dangerous, and would attempt

to evade cap ture.” The majority would have us believe that it “would have been

virtually impossible to c overtly secure 2302 Bleker” because it was reasonabl e to

believe that the raid conducted next door at 3717 Campbell alerted the individuals

inside the house to the police presence even before the officers knocked on the door.

They opine that the fact that Blount and Johnson refused to answer the door and were

heard moving around inside added to the likelihood that “ significant evidence was

being destroyed.” Further, based on the officers’ experience, it was also likely that the

individuals inside the house were participating wi th Thomas in selling narcotics and

were armed. As a result, the situation posed a significant risk to the officers and to the

onlookers outside. The majority concludes that it was not possible for the officers to

set up surveillance while waiting on a warrant.

The record demonstrates otherwise. To determine whether exigent

circumstances were manuf actured by the police, we must “review the entirety of the16 

### Id. at 501.

17 

### The factors are: (1) the degree of urgency involved and the time needed to

obtain a warrant; (2) the existence of a reasonable belief that contraband is about to

be removed or that a suspect may flee; (3) the risk of danger to police or bystanders;

(4) information indicating that the suspects are aware of the police

presence; and (5) the ready destructibility of any contraband present. Richard , 994

F.2d at 248.

31 

### 31 agents’ investigative tactics, pa rticularly those leading up to the exigency alleged to

have necessitated the protective sweep .” 16 

### Considering the five factors we have

identified, 17 

### I believe that the police could have and should have waited to obtain a

warrant before entering 2302 Bleker. Contrary to the majority’s version of the events,

Thomas was not a “fleeing felon.” At most he was a “fleeing suspected felon.” Any

continuous police pursuit of Thomas had ended over thirty minutes before the police

approached 2302 Bleker. There is no evidence that the inhabitants of the house were

aware of the police presence bef ore the agents knocked on the door. Aside from

Cooksey’s broad and uncorroborated statement, there was no indication that

contraband would be found in the house and certainly no evidence regarding its “ready

destructibility” or the risk of its removal or destruction. While the obvious prospect of

danger attends nearly every narcotics investigation, the police were unaware of any

particula r danger to themselves or others which might distinguish this case. For

example, there was no evidence that Thomas was armed when he fled 3717 Campbell.18 

### The firearm named in the affidavit supporting the search warrant for 3717

Campbell was seized during the search. The officers’ suspicion that Thomas was

armed stemmed entirely from the fact that Thomas was a suspect in an aggravated

sexual assault that had occurred two months earlier.

19 

### United States v. Munoz-Guerra , 788 F.2d 295, 298 (5th Cir. 1986).

32 

### 32 No ne of the officers involved in the initial chase reported seeing Thomas with a

firearm. 18



### The officers were in a position to call in reinforcements and seek a warrant while

keeping the hou se under surveillance, a markedly safer and, incidentally, a

constitutional course of action which would have obviated the need to brazenly

confront the unknown in 2302 Bleker. In short, “[t]here was no basis, on these facts,

for believing that resort to a magistrate would have created risks of a greater magnitude

than those which are present in any case where the police have probable cause but

delay entry pending receipt of a warrant.” 19 

### I find no alternative to concluding that the

district court’s finding of exigent circumstances was clearly erroneous. All evidence

obtained in the protective sweep should have been excised.

Because there was no probable cause for the warrant’s issuance, all of the

evidence seized pursuant to the warrant should have been su p pressed. Given the

substantial amount of evidence thus excluded, the error was not harmles s and,

accordingly, the convicti ons of both defendants on Counts 1 and 2 of the indictment

should be vacated and remanded for further proceedings. I must respectfully dissent.