United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 97-1085

United States of America, *
* Appellant, *
* v. *
* Larry Duane Conner, *
* Appellee. * Appeal from the Unite d States

----------------------------------------- Distric t Court for the Northern District of Iowa United States of America, *
* Appellant, *
* v. *
* John Charles Tilton, *
* Appellee. *

Submitted: June 12, 1997 Filed: October 8, 1997TheHonorable William A. Norris, United States Circuit Judge for the United 1 States Court of Appeals for the Ninth Circuit, sitting by designation.
2 Before MURPHY and HEANEY, and NORRIS, Circuit Judges. 1

HEANEY, Circuit Judge.

The government appeals the district court’ s suppression of evidence obtained after police demande d entry into a motel room rented by appellants. We affirm.

I.

On F ebruary 22, 1996, a federal grand jury in th e North ern District of Iowa returned separate two-coun t indi ctments against Larry Duane Conner and John Charle s Ti lton charging each with being a convicted felon i n possessionof a firearm, 18 U.S.C. § 922(g)(1), and with possession of a stolen firearm, 18 U.S.C. § 9 22(j). Both defendants moved to suppress evidence seized pursuant to
a search warrant authorizing the search of Room 31 a t the Elmdale Motel in Sioux City, Iowa. Conne r also moved to supp ress evidence seized from his home pursuant to a warrant. Conner and Tilton argued that the court should supp ress the evidence obtained pursuant to the warrant s beca use police used illegal methods to obtain th e informatio n relied on to establish the probable cause to issue the search warrant. After an evidentiary hearing, the distri ct court granted the motions to suppress. The
cour t agreed that essential information in the searc h
warr ant affidavits was obtained in violation of th e Four th Amendment. The court rejected the government’ s contentionthat the evidence was admissible under either3

the good-faith exception or the independent-sourc e exception.

We fi nd no clear error in the district court’ s detailed factual findings. See United States v. Murray , 34 F .3d 1405, 1409 (8th Cir. 1994) (standard of review ) (citat ions omitted). Police in Sioux City, Iowa wer e investigating a burglary that occurred in late4

Dec ember 1995. The victim had given police a detaile d description of the stolen items, which included a large coin collection, jewelry, silver place settings, and thre e handg uns. Several days after the burglary, polic e received an anonymous telephon e call reporting that Larry Conner and John Tilton had committed the burglary and tha t theywere staying at an unknown hotel or motel in Siou x City. According to the caller , Conner and Tilton had the coins with them and they were preparing to leave the city later that day to dispose of the stolen property. The y reportedly had been driving a red Pontiac Fiero with Iowa license plate WEH624.

Basedon the anonymous tip, police checked area motel s and hotels for the red Fiero. Because three handguns had been taken in the burglary, the investigators believe d that Conner and Tilton might be armed. Two Sioux Cit y police detectives located the Fiero in front of Room 31 a t the Elmdale Motel and called for backup. In all, si x police o fficers were on the scene; only one was i n uniform. Sergeant Young, the officer in charge, testifie d that he planned to knock on the front door of the room an d attempt to speak to individuals inside about the burglary

. He incorrectly assumed that on e of the other officers had checked with the motel office to ascertain who had rented Room 31. In fact, at the time the officers approache d Room31, they did not know that Conner had rented th e room. The officers approached Room 31 solely because the y observed the red Fiero parked in front of it.

Tw o officers, including Sergeant Young, went to th e door of Room 31; two others positioned themselves by the room’s picture window; and two officers took up positions5

behind the motel. One of the officers, who knew nothing about the burglary except what he had been told when h e arr ived at the motel, noticed packages of coins on th e win dowsill between the room’s curtains and window. H e attempted to draw the coins to the attention of th e offi cer in charge, but no other officer noticed th e gesture or the coins on the windowsill.6

An officer knocked on the door and ident ified himself
as a police officer. No one in the room responded. The officer knocked again, and announced a second time that h e
was a police officer. One of the officers stationed b y the window saw someone move aside the drawn curtains and look o ut of the window. In response, the polic e re positioned themselves for better protection, and a t least one officer drew his pistol and held it behind his back. The officer at the door knocked again and announce d the police presence. In addition, Sergeant Young shouted , “Open up,” in a voice loud enough to be heard by a motel resident two rooms away. The officers were loud enough t o awakenanother guest and cause her to step out of her roo m under the mistaken belief that the police were knocking a t her door.

Shor tlyafter the officers’ third attempt, Tilto n opened the door to the room. The district cour t explicitlyfound that Tilton opened the door in response to Sergeant Young’s command. When Tilton opened the door , offic ers observed what appeared to be foreign currency , coins, and envelopes the size of currency on the bed and blue, gold, and maroon boxes matching the victim’ s description scattered throughout the room. Believing tha t the currency and other materials were related to th e burgl ary, Sergeant Young drew his weapon on Tilton , order ed him to back away from the door, and placed hi m under a rrest. Another officer found Conner in th e bathroom and arrested him as well.

The officers stayed in the motel room to secure th e evidence but did not conduct a search of the room unti l theyobtained a warrant. The search warrant application7

included the following informa tion: “Officers knocked on the [motel] door and identifie d themselves and Mr. Tilton opened the door. At that time, in plain view were coi n ro lls and coin sets throughout the room.” The polic e obtained a search warrant for the motel room and seized a Smith& Wesson .38 caliber revolver, a Colt pistol, coins , three large briefcases, and other items believed to have beentaken during the burglary. After searching the room , police obtained a warrant for Conner’s residence in Sloan , Iowa based on the same facts used to support the firs t warrant and a list of the items8

seized from the motel room. During the search of Conner’ s house, law enforcement officers seized items they believe d had also been taken during the burglary.

II.

Basedon these facts, we agree with the district cour t that the officers’ entry into the motel room and arrest o f the occupants violated Conner’s and Tilton’s Fourt h Amendment rights. It is a well-established constitutiona l principle that law enforcement officers may not enter a pers on’s home without a warrant unless the entry i s justified by exigent circumstances or the consent of the
occu pant. Steagald v. United States , 451 U.S. 204, 21 1 (1981); Payton v. New York , 44 5 U.S. 573, 586 (1980). In Payt on , the Supreme Court explained that no zone o f privac yis more clearly defined than a person’s home : “[T]he Fourth Amendment has drawn a firm line at th e entrance to the house. Absent exigent circumstances, tha t thres hold may not reasonably be crossed without a warrant.” 445 U.S. at 590. The same protection against unreasonable searches and seizures extends to a person’s privac yin temporary dwelling places such as hotel o r motel rooms. Hoffa v. United States , 385 U.S. 293, 30 1 (1966); Stoner v. California , 376 U.S. 483, 490 (1964) ; Un ited States v. Rambo , 789 F.2d 1289, 1295 (8th Cir

. 1986).

Th e government contends that Payton does not appl y beca use the police did not “enter” the motel room; the y merel yobserved contraband in plain view when Tilto n opened the door. In other words, the government asserts that Conner and Tilton voluntarily engaged with the polic e9

at the motel. See United States v. Deanda , 73 F.3d 825, 825-26 (8th Cir. 1996) (personwho opens door voluntarily
or in response to a simple knock by police knowingl y expo ses to the public anything that can be seen throug h the door thereby defeating any possible Fourth Amendment arguments because it involves no “search.”); United State s v. Peters , 912 F.2d 208, 210 ( 8th Cir. 1991) (same). The di strict court, however, correctly determined that a n unconstitutional search occurs when officers gain visual or physical access to a motel room after anIn fact, the district court’s determination that the police entered Room 31 under 2 color of authority is well supported by the record. Four police officers were positioned at or near the door. They knocked on the do or longer and more vigorously than would an ordinarymember of the public. The knocking was loud enough to awaken a guest in a nearby room and to cause another to open her door. Several minutes passed before Conner or Tilton responded to the knocks. Before Tilton opened the door, he looked
ou t the window to assess the forces outside. Only after two of the officers ha d identified themselves as police and dema nded him to “open up” did he concede to that demand. Our analysis of the entry of the motel room under Paytonnecessarily rejects the 3 government’s argument that we should assess the police officers ’ command to open the door under a r easonableness standard. See Terry v. Ohio , 392 U.S. 1 (1968). Th e govern ment

asserts that the demand was part of a brief, investigatory questionin g consistent with the Fourth Amendment and that the occupants of the ro om “control” the situation--they decide how far to open the door and what obje cts to leave in plain view duri ngthe questioning. This argument is as detached from real life as it is fro m established constitutional princ iples. Despite the four police officers outside the room andthe two other officers in the general area, Conner and Tilton attempted withou t success to “control the nature of the encounter” by refusing to answer the door. Also, once inside the room, the officers would be entitled to make a sweep of the motel room to ensure their safety during questioning. Thus, it is disingenuous to assert that th e defendants could have limited the officers’ exposure to the room by opening the door just a crack. Finally, if the police could demand entry into a person’s home or hotel
10 occupant opens the door not voluntarily, but in response to a demand under color of aut hority. See United States
v. Jerez , 108 F.3d 684, 692 (7th Cir. 1997); United State s
v. Tovar-Rico , 61 F.3d 1529, 1535-36 (11th Cir. 1995) ; Uni ted States v. Winsor , 846 F.2d 1569, 1572 (9th Cir

. 1988) (en banc). Further, we find no error in th e district court’s determination that, under the totality o f circumstances, Tilton did not voluntarily consent to the officers’ entry into the motel room. Thus, the polic e 2 officers’ action constituted an unconstitutional intrusio n into that zone of privacy. 3room to investigate susp ected criminal activity in situations where they lack a warrant

orev en probable cause to search or arrest, the Fourth Amendment rule would b e swallowed by the Terry exception.
11 As analternative basis for reversal, the government argue s that either the good-faith or the inevitable

discoveryexception to the exclusionary rule renders the evidence admissible despite the Fourth Amendment violatio n in gaining access to the motel room. The governmen t contends that the evidence obtained in the searches of th e motel room and Conner’s home s hould be admissible even if
we fi nd the warrant invalid because law enforcemen t officers reasonably relied on warrants issued by a neutra l magistrate. See United States v. Leon , 468 U.S. 897, 92 2 (1984). The rule in Leon is based on the theory tha t whe re there has been no police illegality, there is n o conduct the courts need to deter and therefore no basis t o enforce the exclusionary rule. As the Supreme Cour t state d: “Penalizing the officer for the magistrate’ s error, rather than his own, cannot logically contribute t o the deterrence of Fourth Amendment violations.” Leon , 46 8 U.S. at 921. The ultimate que stion under Leon is whether the o fficers “had an objectively reasonable basis t o believe they were complying wi th [applicable law] and the Fourth Amendment.” United Sta tes v. Moore , 956 F.2d 843, 84 8 (8th Cir. 1992). In the context of investigator y stops , we have stated that suppression is unwarrante d where pre-warrant police condu ct was “close enough to the line of validity to make the officers’ belief in th e validityof the warrant objectively reasonable.” United St ates v. White , 890 F.2d 1413, 1419 (8th Cir. 1989) ; United States v. Fletcher , 91 F.3d 48, 51 (8th Cir. 1996)

. If, on the other hand, the officers’ pre-warrant conduct12

is “c learly illegal,” the good-faith exception does no t apply. United States v. O’Neal , 17 F.3d 239, 242-43 n.6 (8th Cir. 1994).

The district court concluded that the government coul d not invoke Leon in this case because “[n]o officer could in good faith believe, under t he facts as they existed at the time, that the defendants consented to the officers’ vi sual or physical access to the motel room.” Unite d States v. Conner , 948 F. Supp. 821, 853 (N.D. Iowa 1996). Nor c ould the police reasonably believe that exigen t circumstances justified the intrusion on Conner an d Tilton’s reasonable expectation of privacy. Id. at 854. Sergeant Young stated that he planned only to talk to the occupants of Room 31 and that he lacked probable cause to arrest prior to viewing the contents of the room. In13

fact, none of the officers inv olved even knew to whom the
roomwas rented. We agree with the district court tha t the exception in Leon does not salvage the warrantles s entry by police.
Finally, for the first time on appeal, t he government ad vances the argument that even if the police had no t
com manded the defendants to open the door to the mote l room, they inevitably would have discovered the evidence throughindependent search warrants. See Nix v. Williams , 467 U.S. 431, 433 (1984). Although we need not address a n is sue that was not raised below, see United States v

. Johnson , 64 F.3d 1120, 1126 (8th Cir. 1995); United State s
v. Chalmers , 800 F.2d 737, 738 (8th Cir. 1986), th e district court made factual fi ndings that dispose of this claim and those factual findings are not clearl y er roneous. To succeed under the inevitable-discover y excep tion to the exclusionary rule, the government mus t prove by a preponderance of th e evidence: (1) that there was a reasonable probability t hat the evidence would have been discovered by lawful means in the absence of police misco nduct, and (2) that the government was activel y pursuing a substantial, altern ative line of investigation at the time of the constitutional violation. Unite d States v. Wilson , 36 F.3d 1298, 1304 (5th Cir. 1994). Th e distr ict court concluded that there was no independen t basis for admission of the evidence. Specifically, th e court found that the officers would not have sought eithe r search warrant but for their observation of what the y be lieved to be the proceeds of the Uhlir burglar y follo wing their illegal entry into the motel room

. Conner , 948 F. Supp. at 859. Given that finding and the fact that the government offer s no concrete evidence that14

police explored any alternative investigatory approach, w e find no basis to apply the ine vitable-discovery exception to this case.

III.

Pol ice officers entered appellees’ motel room i n violation of the Fourth Amendm ent. The evidence obtained following that entry, including that which police seized pursuant to search warrants, was tainted by the illegal entry and the evidence15

was properly excluded over the government’s assertions of goodfaith and inevitable discovery. Therefore, we affir m the district court’s suppression order.
MURPHY, Circuit Judge, dissenting.
Since I believe that the police were jus tified in the inves tigation they undertook and that their conduct di d not violate the fourth amendme nt, I respectfully dissent.

On De cember 25, 1995, the Sioux City police received a report of a burglary at the Uhlir residence. Among the stole n items were a coin collection worth approximatel y $100,000, a Chrysler LeBaron convertible, and thre e handg uns. The officers investigating the burglar y received a tip from an anonymo us source on the morning of January2. The tip indicated that Larry Conner and John Tilton had been seen with the stolen coins in a red 1986 Pontiac Fiero with Iowa licens e plate WEH624. The source fur ther stated that the two suspects were staying in a SiouxCity motel but were planning to leave town that sam e day to dispose of the stolen property.

Po lice were dispatched to locate the Pontiac Fier o with a warning that the suspects might be armed becaus e weap ons and ammunition were taken in the burglary. Tw o officers found the car at the Elmdale Motel. Access t o the motel rooms was directly from the parking lot, and th e police observed a number of cars parked in front of rooms , including the red Fiero parked outside of room 31.

When Sergeant Young, the officer in charge of th e investigation, arrived on the scene, he and officer Hein,16

who was in uniform, approachedthe door of room 31 in the hop e of talking with the occupants. Young was alread y familiar with Larry Conner andknew he had prior offenses invol ving drugs and burglaries. Detectives Iddings an d Polak positioned themselves next to the room's pictur e window at one side of the door. After knocking an d identifying themselves at least twice, the officer s observed someone inside the ro om peer out the window, but no one came to the door. Detective Iddings17

also saw on the inside windowsill some coins packaged in clear protective covers which he recognized from a briefing describing the Uhlir burglary. He pointed at th e coins in the hope of attracting Sergeant Young's notice, but Young was repositioning himself next to the doo r outside the line of fire. Hei n knocked again more loudly and Young called out, "Open up."

At this point John Tilton opened the door, and h e opened it wide enough so that Young could see the item s taken in the burglary in plain view. Tilton and Conne r were placed under arrest and given Miranda warnings

. Young directed two of the officers to secure the room, bu t not to search further or touch anything. He and another officer left to get search warrants for the room and for Conner's residence, and evidence was later gathere d pursuant to those warrants.

We review the district court's ultimate conclusion on pro bable cause and exigent circumstances de novo. Se e United States v. Ball , 90 F.3d 260, 262 (8th Cir. 1996 ) (citing Ornelas v. United Stat es , --- U.S. ---, 116 S.Ct. 1657, 1663 (1996)). Before the officers approached th e motel room door, they had already located the vehicle wit h the exact make, model, color, and license plate described inthe tip, and the car was parked at a local motel as th e tip h ad indicated it would be. Even though they ha d knocked and identified themselves as police, no one ha d answered the door, and Iddings had observed coins through the window which appeared to be those taken from the Uhli rThe collective knowledge of al l officers involved in an investigation is relevant 4 to determin ing whether there was probable cause to make an arrest or search. Se e United State s v. Horne , 4 F.3d 579, 585-86 (8th Cir. 1993), cert. denied , 510 U.S

. 1138 (1994); United States v. Morgan , 997 F.2d 433, 435-36 (8th Cir. 1993). In this
case the officers had all been briefed on the circumstances of the burglary and th e anonymous tip, and they were working right next to each other at the scene, responding to rapidly unfold

ing events. See United States v. Shareef, 100 F.3d 1491, 1504 (10th Cir. 1996); Collins v. Nagle , 892 F.2d 489, 495 (6th Cir. 1989).
18 home. At this point the officers had probable cause t o

4 bel ieve that the burglars and the stolen property wer e inside of room 31.

There also was reason to believe there was a risk of flight or of danger to others in the vicinity. Th e officers knew that the proceeds of the burglary included three handguns and ammunition, and they had reason t o suspect the burglars would be armed. The only element of the tip not yet corroborated a t the time the police asked that the door be opened was the information that th e suspects intended to leave town that day to dispose of th e goods. Since the rest of the tip had proven to b e relia ble, there was reason to suspect that attempte d fligh t was imminent. In such exigent circumstance s immed iate police action is justified without the dela y required to obtain a warrant. See Ball , 90 F.3d at 263.

Fo r these reasons the police were justified i n ordering the occupants to openthe door and their conduct did not violate the fourth amendment. They went n o further without first obtainin g a warrant, and it was the
occu pants who opened the door wide enough to permit th e19

burglarized property to be seen. The order suppressin g the evidence should be reversed.20

A true copy.

Attest.

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

.